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Author: ElsterLawOffice -- Saint Louis Missouri

Trust Contests: Clear and Convincing Evidence

It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964).  The evidence to justify cancellation of a will or trust on grounds of incapacity […]

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Transferring Assets to a Trust

Assets are typically only subject to the terms of a trust — and within the trustee’s control and authority — if they are owned by the trust. Assets need to be transferred to a trust in a legally precise way for the transfer to be effective. For instance, an actual deed conveying ownership must be […]

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Justiciability, Mootness

A court can only entertain a case if there is “justiciability.” A justiciable controversy exists where the (1) plaintiff has a legally protectable interest at stake, (2) a substantial controversy exists between parties with genuinely adverse interests, and (3) the controversy is ripe for judicial determination. Mo. Health Care Ass’n v. Attorney Gen. of Mo., […]

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Promissory Note Enforcement

Promissory notes are a common legal instrument used in connection with the lending and borrowing of money. They are typically “black and white” cases when it comes to enforcement when there is a breach. To make a prima facie case on breach of promissory note, there needs to be a showing that the (1) maker(s) […]

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Real Party in Interest, Assignment

A “real party in interest” is one who possesses the legal right to bring a suit and not necessarily the person who benefits from the legal recovery. Asumus v. Capital Region Family Practice, 115 S.W.3d 427, 436 (Mo. Ct. App. 2003). The “real party in interest rules”generally exist to include include all beneficially interested parties. […]

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Motions for Reconsideration

Every so often a party will file a motion to reconsider after an issue is decided against a party. This is, in effect, an effort to re-argue a motion or topic. Some cases have observed that motions for consideration have no legal effect because the Missouri civil procedure rules do not recognize such a motion. […]

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Negligence, Third-Parties

Negligence requires a showing of (1) the existence of a duty to protect the plaintiff from injury, (2) breach of the duty, (3) causation and (4) an injury to plaintiff. Thiele v. Rieter, 838 S.W.2d 441, 442 (Mo. Ct. App. 1992). Foreseeability is key in determining whether a duty exists. Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848 (Mo. 2018). […]

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Power of Attorney Litigation, Attorney Fees

An attorney-in-fact for a principal under a power of attorney has a fiduciary obligation to act in the best interests of the principal consistent with the terms of the power of attorney document. When an attorney-in-fact breaches his or her obligations, the principal, a family member of the principal or some other successor in interest […]

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Trustee Duty to Report and Inform

As part of a trustee’s fiduciary duties, there is an important obligation to keep beneficiaries ” “reasonably informed about the administration of the trust and of material facts necessary for them to protect their interests.” § 456.8-813, RSMo. This is flexible language and greatly depends on the facts of a particular section. However, the official […]

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Trusts: Duty of Loyalty

A trustee has a fiduciary duty of loyalty to act in the best interests of the trust’s beneficiaries. While the Settlor (i.e., trust-maker) is alive and has capacity to revoke the trust, the duties of the trustee are owed exclusively to the Settlor. Section 456.6-603, RSMo. There is typically a shift in these duties when […]

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