Legal Articles

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…

Adequate Remedy at Law, Declaratory Judgments

Declaratory relief is not a “general panacea for all real and imaginary ills.” Missouri Soybean v. Missouri Clean Water, 102 S.W.3d 10, 25 (Mo. 2003). “It is not available to adjudicate hypothetical or speculative situations that may never come to pass.” Id. There are four elements: (1) a justiciable controversy that presents a real, substantial,…

Reasonable Reliance: Fraud and Intentional Misrepresentation

Fraud has nine (9) elements. A plaintiff’s failure to establish any of these elements is fatal to the claim. Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. 1988). Reliance is one of the nine elements of fraud, and thus a plaintiff cannot prevail on a fraud claim unless he or she proves that…

Personal Guaranty, Separate Consideration

A personal guaranty is a type of document in which a guarantor agrees to become secondarily liable for the obligation of a principal debtor if the principal debtor does not perform its obligations. Jamieson-Chippewa Inv. Co., Inc. v. McClintock, 996 S.W.2d 84, 87 (Mo. Ct. App. 1999). The liability of a guarantor is strictly construed…

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