101 South Hanley, Suite 1280 Clayton, MO 63105
314.283.8930; henry@elsterlaw.com

Category: Probate Estate Litigation & Administration

Medical Testimony, Experts

Depending on the nature of the case (e.g., medical malpractice, trust/will challenges for lack of capacity or undue influence, etc.), medical testimony is often crucial. The qualification of a physician as an expert is generally within the trial court’s substantial discretion. Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo.Ct.App.1978). Generally, a practicing physician, even when […]

Read More

Joint Ownership, Probate, Non-Probate Transfer

Typically, only assets that a deceased individual solely owns without a beneficiary designation must pass through probate. Because of this, trusts are often implemented to circumvent probate. Other than trusts, co-ownership arrangements or non-probate transfers are frequently utilized to avoid probate. A non-probate transfer (e.g., transfer on death, payable on death) operates to where the […]

Read More

Voidable Transactions, Trustee Conflicts of Interests, Duty of Loyalty

A trustee owes a fiduciary duty to a beneficiary. Therefore, a trustee is generally not permitted to enter into any transaction that is a conflict between the trustee’s personal interests and fiduciary responsibilities, unless (1) the transaction was authorized by the trust, (2) approved by the Court, (3) consented to or ratified by the beneficiaries, […]

Read More

Transfer in Fraud of Marital Rights, Disability/Minors

To prevail on a transfer in fraud of marital rights claim, a plaintiff/surviving spouse needs to show that the deceased spouse “gave away his [or her] property without consideration with the intent and purpose of defeating…marital rights.” Nelson v. Nelson, 512 S.W.2d 455, 459 (Mo. Ct. App. 1974). Section 474.150.2, RSMo states that there is […]

Read More

Trust Reformation, Mistake

Reformation is usually used in the context of a contract between two parties to correct a mistake and reform the contract to meet the parties’ intentions. It is, in other words, a court ordering a quasi re-writing, amendment and/or modification of a contract or written instrument. By way of example, reformation of a contract based […]

Read More

No-Contest Clauses, Validity

No-contest clauses are frequently used in trusts and wills to prevent lawsuits challenging the validity of a will or trust. They typically provide that if someone challenges the document that the challenger is automatically disinherited. No-contest clauses are strictly enforced without regard to any exception based upon the good faith and/or probable cause of the […]

Read More

Trust Protector: Powers, Duties, Limitations

An increasingly common technique used in trusts is to designate a trust protector. A trust protector is different than the settlor, trustee and beneficiary. Because the trust protector concept is relatively new, there has been uncertainty regarding the trust protector’s authority in trust administration, litigation and breach of trust suits. To address this uncertainty, Missouri […]

Read More

Cross-Examination, Credibility, Impeachment

Credibility is always critical at trial. If a judge or jury does not find you credible, then they do not have to believe your testimony or claims. For this reason, the credibility of a witness is always relevant in a lawsuit. Mitchell v. Kardesch, 313 S.W.3d 667, 675 (Mo. 2010). After a witness testifies on […]

Read More

Trustees, Personal Liability

Asset protection is a big reason individuals will sometimes create a trust. A lot of the focus in such situations is on making sure a beneficiary’s interest in a trust estate is outside the purview of creditors. To that end, trusts often utilize spendthrift provisions. A spendthrift provision is language in a trust that prevents […]

Read More

Modification of Trust Because of Unanticipated Circumstances

Under Section 456.4-412, RSMo, the Court may modify an irrevocable trust if, because of circumstances not anticipated by the settlor/trust-maker, the modification or termination will further the purposes of the trust. This statute obviously adds great flexibility to the Court’s ability to change the terms of a trust. This was largely in response to situations […]

Read More