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Trust Litigation: Set Aside, Void

An individual must have the requisite legal capacity to create a trust. Under Section 456.6-601, RSMo, “the capacity required to create, amend, revoke or add property to a revocable trust…is the same as that required to make a will.” The capacity required to make a will (and hence a trust, too) has been thoroughly developed in case precedent. The individual must (1) understand the ordinary affairs of his/her life, (2) understand the nature and extent of his/her property, (3) know the persons who were the natural objects of the bounty, and (4) intelligently weigh and appreciate his/her natural obligations as to those persons and know that he/she is giving his/her property to the persons mentioned in the document. In re Gene Wild Revocable Trust, 299 S.W.3d 767, 777-78 (Mo. Ct. App. 2009).

When one challenges a will or trust for lack of capacity, the crucial question is whether the person signing the instrument had legal capacity at the time of execution. Evidence of mental unsoundness either before or after the document’s execution is admissible, provided it indicates that such unsoundness existed at the time the document was signed. Armbruster v. Sutton, 244 S.W.2d 65, 72 (Mo. 1951). Direct eye witness evidence is not required. Medical opinion testimony is often used to challenge an instrument. Dorsey v. Dorsey, 156 S.W.3d 442, 446 (Mo. Ct. App. 2005).

Based on case law, and how judges have handled the question of capacity, it is a difficult case to make. Proving that the individual did not understand the “ordinary affairs” of life is a hard task, particularly using solely/mostly circumstantial evidence. As such, cases in which a trust or will is challenged often include other grounds for the contest, like fraud, duress or undue influence. Section 456.4-405, RSMo (“a trust is void to the extent its creation was induced by fraud, duress, or undue influence”). Undue influence, for instance, is often wrapped in with the question of capacity. Undue influence occurs when one person influences, improperly persuades and coerces another individual to sign estate documents to where it is actually the influencer’s wishes. If someone has a diminished capacity, then it may make them more susceptible to undue influence (as well as duress or fraud).

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