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314.283.8930; henry@elsterlaw.com

Resulting Trust versus Constructive Trust

Probate and trust law is substantively complex. This is due in part because of the terminology. Although the terms do not apply exclusively to probate matters, there is often confusion about the distinction between a “resulting trust” and “constructive trust.” Contrary to what it may seem, these really are not probate or estate concepts. Further, […]

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Frivolous Appeals, Damages

People experience a wide range of emotions when they’re a party to a lawsuit, particularly when they have never been part to a suit before. Inevitably, certain individuals will want to counter-sue the other party for what they perceive to be frivolous factual or legal positions taken in a given case. In certain circumstances, a […]

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Material Breach of Contract, Rescission

In breach of contract litigation, the usual remedy is that the breaching party must pay money damages on account of the breach. In some cases, however, a breach may result in an outright cancellation (i.e, rescission) of the contract as if it never occurred. Rescission for breach of contract is available where a material breach […]

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Special Skills/Expertise of a Trustee

A trustee owes an array of fiduciary duties to trust beneficiaries. The nature and extent of these duties can potentially be enlarged if the trustee possesses special skills or expertise. Under Section 456.8-806, RSMo, “[a] trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee […]

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Trust Opportunities, Trustee Breach of Loyalty

Corporate directors/officers and trustees are similar in that they are both fiduciaries and owe others (i.e., shareholders or beneficiaries, respectively) a duty of loyalty. As part of the duty of loyalty, the “corporate opportunity doctrine” forbids a corporate director from acquiring for his or her own benefit an opportunity that would have been valuable and […]

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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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Purpose of Maintenance/Alimony in Divorce

Maintenance (f/k/a as alimony) consists of payments made from one ex-spouse to the other ex-spouse after the marriage has ended. It is founded on the need for reasonable support by one spouse after the end of the marriage, and a maintenance award may extend only so long as the need exists. Cates v. Cates, 819 S.W.2d […]

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Demand Notes and Installment Notes

Promissory notes are legal documents whereby the maker of a note promises to pay a certain amount of money to a payee. In Missouri, promissory notes are interpreted consistent with contract law. Every promissory note will contain repayment terms and usually include interest that accrues. Generally, payments are set on fixed dates or on the […]

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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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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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