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Legal Articles

Undue Influence Presumption, In-Home Health Care Provider

Undue influence is a legal claim which may be used to void and invalidate a will, trust or other legal document. It occurs when an influencer substitutes his or her will for that of the party executing the estate document. As of this writing, the jury instruction regarding undue is more severe and is phrased […]

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Duress: Trusts & Contracts

Wills, trusts, contracts, deeds and other legal documents may be voided if they were executed under duress. As an initial matter, a duress claim is distinct from a claim to set aside a document based on undue influence, lack of capacity or fraud.  To make a successful claim for duress, the plaintiff must prove that […]

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Substantial Performance, Contract Litigation

The traditional rule regarding contracts is that all parties must follow the terms of the contract or agreement precisely. In certain occasions, though, a party may “substantially perfrom” under a contract without being liable for breach of contract.  In the absence of an express provision in a contract requiring precise, literal compliance, substantial compliance of […]

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Aiding and Abetting

Though relatively rare, “aiding and abetting” can also result in civil liability. In Missouri, for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he or she knows that the other’s conduct contitutes a breach of duty and gives substantial assistance or encouragement to the other. Bradley […]

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Voting Trusts, Corporations

A “voting trust” is an agreement where one or more shareholders appoints a trustee to vote on behalf of the shareholders at a corporate meeting. It is in effect a more nuanced proxy arrangements (a proxy is usually legally authorized to vote on another person’s behalf). The principle difference is that a voting trust document […]

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Rule 52.02(k) Guardian Ad Litem Suggestions

What happens when someone is physically or mentally infirm, does not have a guardian/conservator and is a party to a lawsuit? When someone does not have an attorney in litigation, he or she is held to the same standard as a licensed attorney. However, when a physical or mental infirmity exists, that may be impossible.  […]

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Special Damages versus General Damages

“Damages” refers to the amount of money a plaintiff may be entitled to as a result of some civil wrong committed by a defendant (e.g., breach of contract, breach of trust, trespass, personal injury, etc.). “General damages” are those that flow as a natural and necessary result of the act complained of, whereas “special damages” […]

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Prudent Investor Rule, Asset Management, Fiduciary Litigation

A fiduciary (e.g., trustee, personal representative, etc.) has an obligation to invest and manage assets as a “prudent investor” would. When making investment and management decisions, the fiduciary should consider the purposes, terms, distribution requirements and other circumstances of the trust or fiduciary relationship. O’Riley v. US Bank, NA, 412 S.W.3d 400, 414 (Mo. Ct. App. […]

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Interference with Contract versus Interference with Business Relations

Tortious interference with a contract or business expectancy requires (1) a contract or valid business expectancy, (2) defendant’s knowledge of the contract or relationship, (3) a breach induced or caused by defendant’s intentional interference, (4) absence of justification and (5) damages. Bishop & Assocs., LLC v. Ameren Corp., 520 S.W.3d 463, 472 (Mo. 2017).  Whie not […]

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Credible Evidence

It is difficult to overstate the significant of credible evidence in Court. Even if you have undisputed evidence, you can still lose on a claim if the judge or jury simply does not find it credible or believable. Therefore, there are two components to proving a claim or contention: (1) the burden to produce evidence and […]

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