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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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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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Equitable Retainer

Trust, estate and probate law has many interesting quirks. An example of this is the equitable retainer doctrine. In short, it is a legal concept which, in practice, reduces the amount of inheritance a heir may receive if the heir had a debt to the deceased. In other words, if you are to inherit money from […]

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Estate Litigation re: Analyzing Transfers in Fraud of Marital Rights

Normally, and subject to the existence of any estate planning documents, a surviving spouse is entitled to a significant portion of a deceased spouse’s estate. The amount which the surviving spouse receives from a default intestate distribution (i.e., one when there is no will or estate plan in place) will largely depend on if there […]

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Confidential/Fiduciary Relationship in an Undue Influence Claim

Undue influence is “influence which by force, coercion, or over-persuasion destroys the free agency of the [individual signing a document].” Tobias v. Korman, 141 S.W.3d 468, 475 (Mo. Ct. App. 2004). If undue influence existed, then the underlying document is void. Undue influence generally is litigated in cases involving the validity of wills, trusts or other […]

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The Attorney-Client Privilege in Estate, Trust and Will Litigation

Evidence is important in all litigation, but it is especially important in estate litigation because it can be hard to acquire. In cases involving claims that an estate document is invalid because of fraud, duress, lack of capacity or undue influence, there is rarely direct evidence; thus, the plaintiff must often rely on circumstantial, indirect evidence.  […]

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“Interested Persons” Under Missouri Probate

In Missouri, Probate proceedings are typically handled under a separate set of rules than typical civil litigation cases. Most of the Missouri Supreme Court Rules do not apply in probate proceedings and practitioners will tell you that the policies in probate courts vary from county to county. Traditional probate proceedings in Missouri relate to guardianships, […]

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No Contest Clauses in Wills & Trusts, Safe Harbor

A no contest provision in a will or trust is a clause which states that if a beneficiary/heir engages in certain activity he/she is automatically disinherited from the will or trust. More often than not, the activity triggering disinheritance is the filing of a lawsuit challenging the validity of a will or trust (be it […]

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Analyzing Testamentary Capacity

A will or trust is void if the person making it lacked sound mind at the time of execution. Watson v. Watson, 562 S.W.2d 329, 331 (Mo. 1978). In Missouri, an individual who has enough mind and memory to understand the ordinary affairs of life, knows the nature and extent of his/her property and who are the […]

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