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Category: Probate Estate Litigation & Administration

Precatory Language

In the context of estates and civil litigation, precatory language is language requesting, recommending, or expressing a desire rather than a command. Precatory words can include “wish,” “will,” “will and desire” and “request.” Rouner v. Wise, 446 S.W.3d 242, 256 (Mo. 2014). In Missouri, courts are reluctant to find the existence of a trust when precatory […]

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Challenging Revocable Living Trusts

The time limitation for challenging a revocable living trust is generally two (2) years after the settlor’s (i.e., trust creator) death. This two year period can be shortened in at least a couple of different circumstances, such as if the successor trustee sends a notice to all beneficiaries accelerating the time period to six (6) […]

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Exceptions to Trust Spendthrift Clauses

A spendthrift provision in a trust generally prohibts a creditor from trying to collect a debt  of a beneficiary  by seizing the beneficiary’s interest in a trust to satisfy the debt. These types of clauses are commonly included in trusts because the trust-creator (i.e., “settlor”) wants the trust money and assets to be used for […]

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Spousal Abandonment, Probate Inheritance

Sometimes very unexpected developments can occur in probate litigation. This is largely because there are very unique probate laws in Missouri. For example, a spouse who “abandons” a deceased spouse waives any inheritance interest he or she may have in the deceased spouse’s estate. Specifically, Section 474.140, RSMo provides that:    If any married person […]

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Incapacity in Litigation, Mental Examination

When a party is adjudged legally incapacitated, a guardian or conservator typically represents the incapacitated individual’s interests in legal disputes. In certain circumstances, however, a party is for all intents and purposes incapacitated but a guardianship proceeding has never been commenced and there has not been a judgment of incapacity. And because individuals are generally presumed to […]

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Trustee Good Faith Discretion, Breach of Trust

A trustee has the duty to exercise the requisite care, skill and diligence of a person of ordinary prudence would exercise. Jarvis v. Boatmen’s National Bank of St. Louis, 478 S.W.2d 266, 273 (Mo. 1972). The specific actions necessary to accomplish this goal depends on the nature of the trust, particularly its assets and distribution schemes. […]

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Spendthrift Clause Enforceability in Trusts

A spendthrift clause is a provision in a trust which prohbits a beneficiary’s interest from being assigned and prevents a creditor from attaching that interest. Bruce G Robert QTIP Marital Trust v. Grasson, 332 S.W.3d 248, 256 (Mo. Ct. App. 2010). What this  means is that the beneficiary cannot voluntarily assign out the interest in the […]

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Power of Attorney Self-Dealing, Gifts

An attorney-in-fact is someone appointed by a principal under a power of attorney to make decisions on behalf of the principal. The decisions usually relate to financial or healthcare matters for the principal. An attorney-in-fact is a fiduciary of the principal and must act in the principal’s best interests. This generally includes an obligation to […]

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Power of Attorney Litigation

A power of attorney (“POA”) is a legal document where a principal appoints an attorney-in-fact to take actons on the principal’s behalf. The authority granted to an attorney-in-fact most often pertains to financial decisions and healthcare decisions. An attorney-in-fact owes a fiduciary duty to the principal and must act in the principal’s best interests.  The probate […]

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Resulting Trust versus Constructive Trust

Probate and trust law is substantively complex. This is due in part because of the terminology. Although the terms do not apply exclusively to probate matters, there is often confusion about the distinction between a “resulting trust” and “constructive trust.” Contrary to what it may seem, these really are not probate or estate concepts. Further, […]

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