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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 should at least be made a party to the case to allow them to take a position on the issues. Confusingly, this requirement exists even when there are no claims of wrongdoing being made against the person.

What makes things problematic is that a trust can have a significant amount of beneficiaries. It is not uncommon, for instance, for a trust to list a host of charities as beneficiaries in addition to any number of immediate or extended family members. Identifying, locating and effectuating service of process on all of these persons can be problematic, time consuming and expensive.

What happens if someone cannot be located? Fortunately, Missouri permits the use of “virtual representation.” Section 456.3-304, RSMo provides in part that “[u]nless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to a particular question or dispute.” In other words, if someone is a minor, incapacitated, unborn or cannot be located the Court may appoint a party with substantially identical interests and who does not have a conflict of interest to “virtually represent” that person in the litigation. “Substantially identical interests” is not defined by statute. The comments to the Uniform Trust Code, however, state that a conflict may exist if there are competing and/or adverse beneficial interests.

If the Court determines that an interest is not represented or that otherwise available representation may be inadequate, the Court has discretion to appoint a representative to receive notice, give consent and otherwise represent and act on behalf of the minor, incapacitated, unborn individual or person who identity or location is unknown. Section 456.3-305, RSMo.