When a “question of fact” exists, a trial is often needed. It is improper for a Court to decide factual disputes without a trial, particularly on a motion to dismiss or for summary judgment. But, when does a “question of fact” exist? It exists in one of three situations. “A factual question exists if [1]…
Merger Doctrine, Contracts
A “merger clause” is a common provision in a contract. It will usually state something along the lines of the contract being a “complete and exclusive statement of the agreement.” If a contract is a final, complete agreement, the parol evidence rule prohibits prior or contemporaneous oral agreements which vary or contradict the written terms…
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….
Failure to State a Claim, Appeals
A lawsuit fails to state a claim when assuming all of its ultimate factual allegations are true a plaintiff still fails. The argument that a lawsuit fails to state a claim is waivable. Before 2012, a failure to state a claim argument could be raised for the first time on appeal. After 2012, the defense…
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,…
Failure to Produce Witness, Adverse Inference
Often times people who you think would testify at trial do not. In some cases, the Court can allow a party to argue that the reason that person did not appear is because their testimony would have been unfavorable. Put differently, the trial court has discretion to allow parties to “argue an adverse inference from…
Aggrieved Party, Right to Appeal
Any “aggrieved” party to a final judgment may appeal. Section 512.020, RSMo. To be “aggrieved,” certain requirements must be present. The judgment must “operate prejudicially and directly on the party’s personal or property rights or interests, and such effect must be immediate, not merely a possible remote consequence.” Bi-State Development Agency of Missouri-Illinois Metropolitan Dist….
Contracts: Terminating Third-Party Beneficiary Rights
Certain third-party beneficiaries to a contract may sue for breach of contract. This is true even though they are not a signer to the contract. There are three types: donee, creditor, and incidental. Donee and creditor beneficiaries may sue as a third-party for breach of contract, but incidental beneficiaries cannot. There are certain situations when…
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…