When interpreting trusts, there are a number of guidelines to keep in mind. The Grantor’s intent – and the specific language utilized – are paramount when interpreting a trust. Matter of TR Potter, Jr. Exempt Trust, 593 S.W.3d 556, 562 (Mo. App. E.D. 2019). In carrying out this objective, the trust instrument is interpreted as a…
Legal Articles
Reimbursement for Trustee Expenses, Unjust Enrichment
A trustee is typically entitled to reimbursement for expenses the trustee advances for the trust. Section 456.7-709, RSMo. Reimbursement is available for “expenses that were properly incurred in the administration of the trust.” Further, to the extent necessary to prevent unjust enrichment, expenses that were not properly incurred in the administration of the trust are…
Attorney Fees in Will Contests
The general rule is that a party is responsible for his/her own attorney fees in litigation, regardless of the outcome. The usual exception to this rule is if there is an applicable statute or contract which calls for an award of attorney fees. “Whether a trial court had authority to award attorney fees is a question…
Resulting Trusts
Resulting trusts and constructive trusts are nebulous equity concepts in the law. Both are generally viewed as remedies. Both are “implied trusts.” Colonial Presbyterian Church v. Heartland, 375 S.W.3d 190, 195 (Mo. App. W.D. 2012). A resulting trust is “implied by law to meet the requirements of justice that a legal status be given to what…
Probate Deadlines
Deadlines in probate litigation and administration are often unforgiving. For instance, a will must be presented to the correct probate court within a year or it is essentially a dead letter. Will contests and estate disputes must be pursued very quickly. When it comes to probate deadlines, Missouri Courts have “consistently rejected such policy arguments…
Determining a Grantor’s Intent in Trusts
When interpreting a trust, the Settlor’s “intent is controlling and such intention must be ascertained primarily from the trust instrument as a whole.” Berezo v. Berezo, 628 S.W.3d 737, 743-44 (Mo. App. E.D. 2021). Because language and circumstances vary, the Court must examine “the specific language as well as the surrounding circumstances.” Matter of TR…
Successor in Interest, Powers of Attorney
The term “successor in interest,” as of this writing, has not been defined in the context of power of attorney litigation. When someone mismanages his/her authority under a power of attorney, the principal, or his/her successors in interest, can file suit. The relevant statute defines “successor in interest”: “For purposes of this section, the principal’s…
Non-Monetary Claims Against the Estate
When an individual dies, there is generally no more than one year from the date of death to make a “claim” against his/her estate. The burden to commence a claim is the responsibility of the claimant. Mo. Highway & Transp. Com’n v. Myers, 785 S.W.2d 70, 73 (Mo. 1990). The general purpose of this deadline is…
Will Contests, Self-Proving Wills
Will contests are unique for several reasons. Perhaps most significantly, the burden is on the proponent of the document to prove the will was executed and that the testator possessed the requisite capacity. Many times the “proponent” of the will is the defendant in the lawsuit. So, the will contest instructions contemplate the defendant presenting…
Trustee Abuse of Discretion Factors
Increasingly, trust instruments grant trustees “discretion” to do certain acts. Drafters include this language to account for unanticipated circumstances and make a trustee’s life easier. But even where a trustee has discretion, they can act improperly. “A grant of absolute discretion to a trustee is not a roving commission – the trustee must be guided…