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Category: Probate Estate Litigation & Administration

Virtual Representation, Trust Disputes, Beneficiaries

Many types of trust litigation claims, including most breach of trust claims (e.g., breach of fiduciary duty) against a trustee and trust contests, require that all qualified beneficiaries to the trust be joined as parties. The reasoning is that if the Court is adjudicating a trust in which someone has an interest in, that person […]

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Special Fiduciary, Trust Litigation, Breach of Trust

In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is […]

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Will Contest, Multiple Wills, Res Judicata

If a will contest is successful, then the legal effect is that the will is invalid and void. Section 473.083.7 (A will contest determines “intestacy or testacy or which writing or writings constitute the decedent’s will.”). Accordingly, assuming there is no prior will, the Court finds that the person died intestate/without a will in the […]

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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 […]

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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 […]

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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, […]

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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 […]

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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 […]

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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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