Legal Articles

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…

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…

Trust Language: “Necessary or Advisable” Distributions

The language of a trust is extremely important. And when a will, trust, and other estate documents form part of the same plan, they are interpreted together. Indeed, “[w]hen a trust and will form parts of the same plan, they must be construed together.” Shriners Hospital for Children v. Schaper, 215 S.W.3d 185, 189-90 (Mo….

Gratuitous Services & Family Relationship Defense

A “family relationship” is an affirmative defense to certain claims. It is rare. It can arise as a defense to claims of unjust enrichment, quantum meruit, or adverse possession. The defense is that services were rendered out of love and affection and that one was not necessarily trying to seek money. “The existence of a…

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