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314.283.8930; henry@elsterlaw.com

Determining Heirs in a Probate Proceeding

While rare, there is a procedure in the probate code to determine whether an individual is the child of a deceased person for purposes of probate inheritance and succession. Obviously, it typically only comes into play when there is uncertainty regarding paternity.  Assuming there is not a marriage or other legal presumption of a parent-child […]

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Trustee Removal without Cause

Although it is not as frequently utilized as the “for cause” removal provisions — e.g., serious breach of trust, unfitness/failure to administer, lack of cooperation between cotrustees — Missouri trust law does permit a trustee to be removed without cause in certain situations. Under Section 456.7-704.2(4), the Court has discretion to remove a trustee if […]

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Justiciability, Mootness

A court can only entertain a case if there is “justiciability.” A justiciable controversy exists where the (1) plaintiff has a legally protectable interest at stake, (2) a substantial controversy exists between parties with genuinely adverse interests, and (3) the controversy is ripe for judicial determination. Mo. Health Care Ass’n v. Attorney Gen. of Mo., […]

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Best Evidence Rule, Original Documentation

The best evidence rule generally requires that only original documentation may be admitted as evidence at trial to show the terms of the document/writing. A duplicate is not admissible under the best evidence rule. Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481,, 484 (Mo. Ct. App. 1995). It is a narrow rule and only applies […]

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Mary Carter Agreements, Litigation Settlements

In multi-party litigation, sometimes some but not all parties will reach a settlement agreement. These are broadly referred to as “Mary Carter Agreements.” They can be signed for any number of reasons strategically. The Missouri Supreme Court has found that a typical Mary Carter agreement has the following features: 1) The liability of the settling […]

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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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Abatement, Multiple Lawsuits

Because of procedural rules and/or general litigation strategy, more than one lawsuit is sometimes filed in a different court. In certain circumstances, “abatement” limits subsequent or separate lawsuits. Under abatement (a/k/a “pending action doctrine”), when a claim involves the same subject matter and parties as a previously filed suit so that the facts and issues […]

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Corporate Dissolution & Discontinuance, Shareholder Disagreement

There are a number of ways a corporation can be dissolved through a lawsuit in Missouri. Some of the methods depend on the nature of the corporation (e.g., close corporation, statutory close corporation). There are a few which further depend on whether the directors, officers and/or shareholders are in a “gridlock” or “stalemate” with respect […]

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Failure to Prosecute with Due Diligence

Litigation is time consuming and expensive. While it varies from case-to-case, the court imposed deadlines and legal delay tactics can sometimes unduly prolong proceedings. In certain circumstances, the court can unilaterally dismiss a case if it determines that the plaintiff is not expeditiously pursuing the claims. Indeed, trial courts have an inherent power to dismiss […]

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Amending a Petition/Lawsuit

In Missouri, a “Petition” is the lawsuit filed by a plaintiff requesting relief against a defendant (often in the form of money damages). It is called a “Complaint” in federal court, but they’re functionally the same thing. It is quite common for a petition to be amended to account for facts uncovered in discovery or […]

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