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314.283.8930; henry@elsterlaw.com

Trust Contests: Clear and Convincing Evidence

It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964).  The evidence to justify cancellation of a will or trust on grounds of incapacity […]

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Will Contests: Grounds, Necessary Parties

A last will and testament may be contested on numerous grounds, the most common of which include challenges for lack of capacity, fraud, duress, and/or undue influence. There are strict, specific deadlines for challenging a will. While the deadline varies, a will contest is usually pursued after a will is admitted to probate. An order […]

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Declaratory Judgment to Challenge Revocable Living Trusts

The use of revocable living trusts in estate planning is extremely common. Along with the rise of their use, challenges to the validity of revocable living trusts have also risen. Trusts may be contested on a number of grounds, the most common of which are lack of capacity, undue influence, fraud or duress. These claims […]

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Contract Liability and Tort Liability

When there is a contract in play, often times there is confusion when a plaintiff is making a claim whether the claim is for breach of contract or for tort liability. Sometimes a plaintiff will assert both contract liability and tort liability (e.g., fraud, negligence) for failure to perform contract provisions. This is usually impermissible.  […]

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When you may be Personally Liable for LLC or Corporate Debt

One of the main benefits to forming a limited liability company or corporation is that the owners of the company are usually not personally responsible for the debts of the busness. There are exceptions to this general rule. First and foremost, if there is a personal guarantee for a business debt, then the personal guarantor […]

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Time Limit and Deadline to Challenge Will

A last will and testament in Missouri (and other states) may be challenged and voided. The most common grounds for a contest are lack of testamentary capacity, undue influence, fraud and/or duress.  One of the goals in the estate administration process in Missouri is to have a quick, efficient manner of winding down one’s affairs. […]

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Fraud and Misrepresentation: Facts and Opinions

In most claims for fraud — whether it be intentional misrepresentation or negligent misrepresentation — a party claiming the fraud must prove that the other party intentionally or unintentionally provided false, factual information that was material. Statements of opinions are usually not actionable for fraud. When the car salesmen tells you that a particular vehicle […]

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Trust Fraud Challenge

Lack of testamentary capacity and undue influence are the two most common bases for challenging the validity of a revocable living trust. Though rare, however, it is possible to challenge a trust based on fraud. A trust is void to the extents its creation was induced by fraud, duress or undue influence. Section 456.4-406 RSMo. […]

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Bad Faith Refusal to Settle

Though rarely asserted, there is such a claim as suing an insurance for bad faith for failure to settle a claim. Zumwalt v. Utilities Insurance Co., 228 S.W.2d 750, (Mo. 1950). This is technically different than a statutory vexatious refusal to pay claim. What constitutes “bad faith” for purposes of this claim? As a general matter, […]

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Undue Influence & Fraud Presumptions in Estate Litigation

Undue influence is a legal concept that occurs when a third-party coerces and improperly influences another person to sign a document or make a property conveyance. It exists when the influencer destroys the will of the signer to where the influencer’s will is substituted for the signer’s will. Because in such cases the wishes expressed in the […]

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