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314.283.8930; henry@elsterlaw.com

Modifying Irrevocable Trusts by Consent

When Missouri updated its trust laws in around 2005, several statutes were added that permitted irrevocable trusts to be modified. An irrevocable trust, as the name suggests, is generally not subject to amendment or change. Most revocable trusts become irrevocable and not subject to change after the settlor/trust-maker dies. The problem is that many irrevocable […]

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Trusts, Principal Place of Administration

Trust litigation can often involve interstate disputes as to what state and county should hear and entertain the litigation. This is because trusts will often involve family members, trustees and beneficiaries who reside in different states. Many states have adopted the Uniform Trust Code as a means of providing more consistent laws on how trusts […]

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Additions to Trust, Funding, Lapse

A trust is really only efficacious to the extent assets are titled and owned by the trust. To transfer assets to a trust, there must be a formal conveyance to the trust or trustee of the trust. Certain assets will have to be transferred and re-titled in different ways. With real estate, for instance, there […]

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No Contest, Forfeiture, In Terrorem Clauses: Wills & Trusts

To combat disputes and litigation about wills and trusts, estate planning attorneys sometimes advise clients to include a no contest, forfeiture or “in terrorem” clause in a will, trust or estate document. These clauses generally provide that if an heir or other party files a suit relating to the document he or she is disinherited. […]

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Trust Assets in a Divorce

When dividing marital property in a divorce, the court is to consider the factors set forth in Section 452.330, RSMo and then divide the property in such a way that it seems just. Workman v. Workman, 293 S.W.3d 89, 96 (Mo. Ct. App. 2009). A court generally has “great flexibility” in dividing the marital property. Shepard v. […]

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Undue Influence Presumption, In-Home Health Care Provider

Undue influence is a legal claim which may be used to void and invalidate a will, trust or other legal document. It occurs when an influencer substitutes his or her will for that of the party executing the estate document. As of this writing, the jury instruction regarding undue is more severe and is phrased […]

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Duress: Trusts & Contracts

Wills, trusts, contracts, deeds and other legal documents may be voided if they were executed under duress. As an initial matter, a duress claim is distinct from a claim to set aside a document based on undue influence, lack of capacity or fraud.  To make a successful claim for duress, the plaintiff must prove that […]

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Active Procurement: Undue Influence in Estate Litigation, Challenges

Undue influence is a common legal claim used in probate litigation to set aside, void or challenge a will, trust, deed or non-probate transfer. It is when the influencer substitutes his or her will for the person who is signing the document. Because this is a vague claim, Missouri cases have set forth three elements […]

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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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Undue Influence in Wills, Trusts, Deeds, Nonprobate Transfers: Factors

Wills, trusts, deeds, and nonprobate transfers (e.g., beneficiary designations, transfer on death or payable on death arrangements) are sometimes challenged on the basis of undue influence. Undue influence is when one individual induces another by “active conduct” to provide a substantial benefit through the transfer of property. Undue influence cases are evaluated on a case-by-case […]

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