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Monthly Archives: November 2014

Mental/Testamentary Capacity: Contracts, Wills, Trusts

Mental capacity generally refers to a signatory’s state of mind when he/she signs a document. To be valid, the signatory’s mental capacity must be clear, lucid and free from any undue influence or restraint. It is not uncommon for documents to be challenged for lack of capacity. Depending on the document, the legal standards governing […]

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Trusts & the Unauthorized Practice of Law

Recently, the Missouri Court of Appeals in the Eastern District addressed a question that has persisted with trust litigation practitioners in Missouri. Is a non-attorney trustee authorized to represent a trust in litigation? Would that be considered the unauthorized practice of law? It appears that the answer is “yes.” Missouri limits the practice of law […]

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Fraud Under Missouri Probate Code; Common Law Fraud

There is a special cause of action that can be asserted for fraud when it is made in the context of a probate case. Section 472.013, RSMo provides as follows: [w]henever fraud has been perpetrated in connection with any proceeding or in any statement filed under [the probate] code, or if fraud is used to […]

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Discovery of Assets: Estate, Trusts, Conservatorship, Wills, Probate

In probate, title and ownership to assets can become blurred and sometimes completely unknown. Complicated titling schemes or transfers between conservatorships, trusts and other individuals are often the cause of the problem. For this reason, Missouri statutes set forth a procedure for “Discovery of Assets” to determine right, title, responsibility and ownership of property: Any […]

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Easement Creation and Abandonment

Easements grant a right to use another’s real property. An easement can be appurtenant or in gross. An easement appurtenant attaches to and passes with the conveyance of land even though it may not be specifically mentioned in a conveyance/deed.¬†Stroup v. Johnson, 539 S.W.2d 711, 713 (Mo. Ct. App. 1976). ¬†An easement in gross, on […]

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Promissory Notes: Enforcement, Assignment, Ownership

Promissory cover many financial transactions, including mortgages and many types of commercial loans. In order for a plaintiff to prevail on a claim for breach of promissory note, the plaintiff must prove, among other things, that there is a (1) valid promissory note, (2) signed by the maker/debtor and that there (3) is an outstanding […]

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Malicious Prosecution

One of the first questions a defendant in a civil lawsuit will inevitably ask is, assuming they prevail with the defense, whether a countersuit or independent suit can be filed against the plaintiff. The reasoning is well taken: can I sue the other person back if I win for putting me through the litigation process? […]

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Resulting, Implied, Constructive Trusts

All trusts are not express trusts. There are circumstances in which a court may construct and impose an “implied” or “resulting” trust as a way to remedy legal injuries. These types of trust arise out of implication of law and are imposed in a trial court’s sound discretion when weighing the particular circumstances of a […]

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