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314.283.8930; henry@elsterlaw.com

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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Trustee: Personal Liability

In breach of trust and/or breach of fiduciary suits, whether a trustee is personally liable often comes up. Section 456.10-1010, RSMo provides some points of clarification on the matter: (1) Unless provided otherwise in a contract, a trustee is not personally liable on a contract if the trustee discloses the trustee/fiduciary capacity in the contract. […]

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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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Transferring Assets to a Trust

Assets are typically only subject to the terms of a trust — and within the trustee’s control and authority — if they are owned by the trust. Assets need to be transferred to a trust in a legally precise way for the transfer to be effective. For instance, an actual deed conveying ownership must be […]

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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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Trust Law versus Corporate Law, Controlling Duties

When a trust owns corporate shares, do corporate fiduciary obligations or trustee obligations prevail? The answer is that generally a trustee’s obligations take priority. Upon incorporation of trust assets, the corporation becomes the alter ego of the trustees and the trustee’s acts are determined in the light of the trust. Weldon Revocable Trust v. Weldon, 231 S.W.3d 158, 171 […]

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Trusts: Beneficiary, Qualified Beneficiary, Interested Person

In trust litigation, particularly breach of trust litigation, your legal relation to the trust is extremely important in determining what claims you can make. Missouri trust law distinguishes between a “qualified beneficiary,” “beneficiary” and “interested person.” By way of example, a qualified beneficiary is typically either someone who is eligible to receive mandatory or discretionary […]

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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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Virtual Representation, Trust Disputes, Beneficiaries

Many types of trust litigation claims, including most breach of trust claims (e.g., breach of fiduciary duty) against a trustee and trust contests, require that all qualified beneficiaries to the trust be joined as parties. The reasoning is that if the Court is adjudicating a trust in which someone has an interest in, that person […]

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Trust Reformation, Mistake

Reformation is usually used in the context of a contract between two parties to correct a mistake and reform the contract to meet the parties’ intentions. It is, in other words, a court ordering a quasi re-writing, amendment and/or modification of a contract or written instrument. By way of example, reformation of a contract based […]

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