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Category: Probate Estate Litigation & Administration

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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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Trust Litigation: Breach of Fiduciary Duty, Breach of Trust

Trustees are fiduciaries who must act in the best interests of the beneficiaries. To win on a claim of breach of fiduciary duty or trust, a plaintiff needs to prove that there is a (1) fiduciary duty, (2) a breach of that duty, (3) causation and (4) harm/damages. Matter of Wilma G. James Trust, 487 […]

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Modifying Irrevocable Trusts by Consent

When Missouri updated its trust laws in around 2005, several statutes were added that permitted irrevocable trusts to be modified. An irrevocable trust, as the name suggests, is generally not subject to amendment or change. Most revocable trusts become irrevocable and not subject to change after the settlor/trust-maker dies. The problem is that many irrevocable […]

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Successor Trustee Authority, Release of Liability

The general rule in Missouri is that successor trustees, unless the terms of the trust document say otherwise, possess all of the duties and authority of the initial trustee and/or any predecessor trustee. Therefore, a successor trustee usually possesses all of the “specific powers” of a trustee articulated in Section 456.8-816, RSMo. One of the […]

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Corporate Derivative Shareholder Claims, Beneficiary Trust Claims

With corporations, the directors and officers manage the corporation for the benefit of the shareholders. With trusts, the trustees manage the trust for the benefit of the beneficiaries. When a corporate officer/director commits a wrong against the corporation, or causes another injury to the corporation, a shareholder can bring a derivative on behalf of the […]

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Trusts, Principal Place of Administration

Trust litigation can often involve interstate disputes as to what state and county should hear and entertain the litigation. This is because trusts will often involve family members, trustees and beneficiaries who reside in different states. Many states have adopted the Uniform Trust Code as a means of providing more consistent laws on how trusts […]

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