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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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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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