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…
Legal Articles
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…
Reliance on Trust Instrument
A trustee who reasonably relies on the language of a trust is not liable for breach of trust if the breach resulted from the reliance. Section 456.10-1006, RSMo. A court may, for example, modify, reform, or construe the trust in a way that it deviates from the plain language of the trust. If this is…
Guardianship and Conservatorship: Reasonable Choice?
When picking a guardian or conservator, the Court must appoint the must “suitable” person. The Court must also follow a hierarchy in making its choice. At the top of this list, the Court must consider “any eligible person nominated” by the allegedly incapacitated person, provided the person can “make and communicate a reasonable choice.” Section…
Breach of Trust, Sole Discretion
Fiduciary and trust litigation can be very complex. In certain trust instruments, a trustee is granted “sole discretion” to do certain things. This language, however, can be very misleading. Even when a trustee is granted “sole discretion,” a trustee may be liable if the trustee willfully abuses his discretion, acts arbitrarily, fraudulently, dishonestly, or with…
Power of Attorney, Successor-in-Interest
Power of attorney litigation is complex. When an agent or attorney-in-fact breaches his or her duty under a power of attorney, the principal has the standing to sue the agent. Can anyone else other than the principal sue? A principal’s “successors in interest” may maintain a lawsuit. “Successors in interest” includes a (1) conservator of…
Constructive Trusts, Specific Property
A constructive trust is not a cause of action. It is a remedy. Specifically, it is a remedy in cases where one who has acquired property under such circumstances as make it inequitable for him to retain it by making him or her a trustee for the person(s) injured. Ralls County Mut. Ins. Co. v….