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Monthly Archives: February 2018

Omitted Spouse, Non-probate Transfer

Part of the reason that probate litigation is complex is because there are procedural and substantive differences in how will, trust, joint ownership and non-probate transfer disputes are handled — even though these devices are often used by individuals interchangeably. With wills, pursuant to ยง 474.235, RSMo an “omitted spouse” is granted the right to […]

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Oral Partnership Agreements

It is important to get it in writing, especially when it comes to business ventures. Contrary to popular belief, it is possible for a business partnership to exist without a writing saying so. If a court determines that a partnership exists, then this means that the partners owe each other a host of fiduciary duties. […]

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Nuisance: Real Property/Estate Interference

An owner of real estate may maintain a lawsuit for nuisance if there is an unreasonable, unusual, or unnatural use of one’s property so that it substantially impairs the right of another to peacefully enjoy his or her property. Frank v. Envtl. Sanitation Msgmt, Inc., 687 S.W.2d 876, 880 (Mo. 1985). A nuisance claim is […]

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Power of Attorney Self-Dealing

An attorney-in-fact acting for a principal under a power of attorney instrument has a legal obligation to act in the principal’s best interests. For this reason, certain powers must be expressly authorized to be valid. Section 404.710.6, RSMo provides, in part, that there must be express written authority in the power of attorney document for […]

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Trustee Removal: Lack of Fitness, Unwillingness

Trustee removal is complex litigation. Missouri has mostly adopted the uniform trust code, which authorizes trustee removal for cause when (among other circumstances) there is “unfitness” or “unwillingness” of a trustee. Most trustee removal claims center on allegations of breach of trust, failure to effectively administer or lack of cooperation among co-trustees. However, “unfitness” and […]

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Incapacity, Business Transactions

Legally, several things happen when someone is adjudicated as incapacitated and a guardian or conservator is appointed for the protectee (i.e., the incapacitated person). Perhaps most significantly, the protectee loses his or her right to enter into business transactions. Instead, it is the conservator’s responsibility (usually with court approval) to enter into such transactions. Section […]

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