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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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Precatory Language

In the context of estates and civil litigation, precatory language is language requesting, recommending, or expressing a desire rather than a command. Precatory words can include “wish,” “will,” “will and desire” and “request.” Rouner v. Wise, 446 S.W.3d 242, 256 (Mo. 2014). In Missouri, courts are reluctant to find the existence of a trust when precatory […]

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Challenging Revocable Living Trusts

The time limitation for challenging a revocable living trust is generally two (2) years after the settlor’s (i.e., trust creator) death. This two year period can be shortened in at least a couple of different circumstances, such as if the successor trustee sends a notice to all beneficiaries accelerating the time period to six (6) […]

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Exceptions to Trust Spendthrift Clauses

A spendthrift provision in a trust generally prohibts a creditor from trying to collect a debt  of a beneficiary  by seizing the beneficiary’s interest in a trust to satisfy the debt. These types of clauses are commonly included in trusts because the trust-creator (i.e., “settlor”) wants the trust money and assets to be used for […]

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Spendthrift Clause Enforceability in Trusts

A spendthrift clause is a provision in a trust which prohbits a beneficiary’s interest from being assigned and prevents a creditor from attaching that interest. Bruce G Robert QTIP Marital Trust v. Grasson, 332 S.W.3d 248, 256 (Mo. Ct. App. 2010). What this  means is that the beneficiary cannot voluntarily assign out the interest in the […]

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Ambiguous Trusts, Parol Evidence

In interpreting trust documents, you are generally restricted to reviewing only the language and terms of the trust. Indeed, “[a]bsent any ambiguity in the terms of the trust, the intent of the [trust-maker] must be determined from the four corners of the instrument without resort to parol evidence as to the intention.” Kempton v. Dugan, 224 […]

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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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Trust Litigation

Trust litigation is becoming more frequent. This is due to a number of factors, such as changes in trust laws and an ageing segment of the population who created trusts. Another important factor is that the Uniform Trust Code, which has been mostly adopted in Missouri, permits a broad range of individuals to file lawsuits […]

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