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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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Dead Man’s Statute

Section 491.010, RSMo contains Missouri’s version of the so-called “Dead Man’s Statute.” It provides, in relevant part, that “in any…suit…where one of the parties…or his agent…is dead or is shown to be incompetent…then any relevant statement or statements made by the decedent party or agent or by the incompetent prior to his incompetency, shall not […]

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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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Power of Attorney Litigation, Attorney Fees

An attorney-in-fact for a principal under a power of attorney has a fiduciary obligation to act in the best interests of the principal consistent with the terms of the power of attorney document. When an attorney-in-fact breaches his or her obligations, the principal, a family member of the principal or some other successor in interest […]

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Trusts: Duty of Loyalty

A trustee has a fiduciary duty of loyalty to act in the best interests of the trust’s beneficiaries. While the Settlor (i.e., trust-maker) is alive and has capacity to revoke the trust, the duties of the trustee are owed exclusively to the Settlor. Section 456.6-603, RSMo. There is typically a shift in these duties when […]

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Original Wills, Duplicate Wills

When requesting that a last will and testament be probated, the original will must be presented to the Court. The reason for this is that under Missouri law “a will is presumed destroyed by the testator [i.e., will-maker] with intent to revoke if the will was last seen in possession of the testator prior to […]

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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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Special Fiduciary, Trust Litigation, Breach of Trust

In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is […]

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Will Contest, Multiple Wills, Res Judicata

If a will contest is successful, then the legal effect is that the will is invalid and void. Section 473.083.7 (A will contest determines “intestacy or testacy or which writing or writings constitute the decedent’s will.”). Accordingly, assuming there is no prior will, the Court finds that the person died intestate/without a will in the […]

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