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Oral Trusts

An express trust is one in which the settlor/grantor (i.e., the trust creator) purposefully creates a trust. It can only come into existence by the manifestation of an intention to create the trust agreement and relationship. Warsick v. De Mayo, 213 S.W.2d 392, 395 (Mo. 1948); Section 456.4-402, RSMo (“a trust is created only if…the settor indicate an intention to create the trust” and the “trust has a definite beneficiary”). Therefore, four (4) elements must be established to prove the existence of an express trust (1) a beneficiary, (2) a trustee, (3) trust property so sufficiently described or capable of identification that title thereto can pass to the trustee, [and] (4)  actual delivery of the corpus, its character considered [,] or a legal assignment of the same to the trustee actually conveying present title to the  trustee; or the retention of title by the owner under circumstances which unequivocally disclose an intent to hold it for the use of another. Rouner v. Wise, No. SC93679 (Mo. 2014) (citing Atl. Nat’l Bank of Jacksonville, Fla. v. St. Louis Union Trust Co., 211 S.W.2d 2, 25 (Mo. 1948).

To the surprise of many, express trusts often do not need to be in writing. Indeed, an express trust may be proved by any evidence tending to establish the settlor’s manifested intention. Platt v. Huegel, 32 S.W.2d 605, 606 (Mo. 1930) (“an express trust may be proved not only by express declarations, but also by evidence of the acts and declarations, either oral or written, of the parties, as well as by the surrounding circumstances”). Generally, the only time a signed, written trust is required is when the trust pertains to real estate. Section 456.4-407, RSMo (“all declarations or creations of trusts of any land, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts, or by the party’s last will, in writing, or else they shall be void”).

From an attorney’s perspective, the most daunting task when litigating or resolving disputes about an express oral trust is proving its existence. A party must establish that all of the elements of an express trust are present by “clear and convincing evidence.” Id. Legally, this is a much higher bar than in a typical civil lawsuit.

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