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Trustee: Personal Liability

In breach of trust and/or breach of fiduciary suits, whether a trustee is personally liable often comes up. Section 456.10-1010, RSMo provides some points of clarification on the matter: (1) Unless provided otherwise in a contract, a trustee is not personally liable on a contract if the trustee discloses the trustee/fiduciary capacity in the contract. […]

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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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Nonprofit Corporation Derivative Actions

A corporate derivative action is one in which a shareholder or member sues on behalf of the corporation and against a director — usually for mismanagement, breach of fiduciary duty and/or some other malfeasance. The reasoning is that the injury is to the corporation and that the corporation, not its members/shareholders, must bring the suit […]

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Escrow Agreements, Breach of Escrow

Escrow is a term generally used in the context of real estate transactions. A conditional delivery, or delivery in “escrow,” means that delivery is conditioned upon the performance of some act or the occurrence of some event. Hammack v. Coffelt Land Title Inc., 348 S.W.3d 75, 81 (Mo. Ct. App. 2011). It is the same […]

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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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Power of Attorney Self-Dealing

An attorney-in-fact acting for a principal under a power of attorney instrument has a legal obligation to act in the principal’s best interests. For this reason, certain powers must be expressly authorized to be valid. Section 404.710.6, RSMo provides, in part, that there must be express written authority in the power of attorney document for […]

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Partnerships, Accountings

Partners owe each other a fiduciary with respect to the affairs of the partnership. Anchor Centre Partners v. Mercantile Bank, 803 S.W.2d 23 (Mo. 1991). As part of this fiduciary duty, each partner has a duty to “render on demand true and full information of all things affecting the partnership to any partner.” King v. Bullard, 257 […]

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Breach of Fiduciary Duty and Compensation Forfeiture

A breach of fiduciary duty occurs when an individual or entity fails to follow his, her or its fiduciary obligations. More often than not, it is used by a plaintiff as a legal basis for damages against someone who breaches his or her fiduciary duty (e.g., failure to manage property,  misappropriation of funds, etc.). It […]

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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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Fraud Under the Probate Code

Fraud under the probate code is a legal claim in Missouri codified in Section 472.013 RSMo. It states as follows:  Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code, or if fraud is used to avoid or circumvent the provisions or purposes of this code,any person injured […]

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