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…
Legal Articles
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…
Probate Exception to Federal Jurisdiction
There are two main ways for a lawsuit to end up in federal court. First, if the lawsuit “arises under” federal law. This is sometimes called federal question jurisdiction. Second, if there is diversity jurisdiction. There are, in turn, two main requirements for diversity jurisdiction: the amount in controversy must exceed $75,000 and all of…
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….
Trustee Record Keeping Duty
A trustee is required to “keep adequate records of the administration of the trust.” Section 456.8-810, RSMo. This is closely related to the duties to act with prudence and report and inform to the beneficiaries. Failure to follow any of these duties is a breach of trust. It could lead to a damages claim. If…
Will Contest Standing
A party with “standing” has the legal right to sue for injuries. In some situations, this can be nuanced. For example, the will contest requirements are rigidly prescribed in Section 473.083, RSMo. With will contests, “standing has been described as belonging to one who would either gain or lose under the contested will.” Salvation Army,…
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…