Missouri law does not honor unenforceable contracts of adhesion. An adhesion contract is essentially a take it or leave it proposition. One party accepts the contractual terms of the other party. It is “a form of contract created and imposed by a stronger party on a weaker one.” Swain v. Auto Servs., Inc., 128 S.W.3d…
Legal Presumptions
Legal presumptions are generally procedural. Michler v. Krey Packing Co., 253 S.W.2d 136, 140 (Mo. 1952). They are usually evidentiary devices used in criminal and civil cases. Tupper v. City of St. Louis, 468 S.W.3d 360, 370 (Mo. 2015). They place the burden upon the party denying their truth to produce evidence. Id.“[T]he facts which…
Trust Amendments and Modifications
When interpreting trusts, the intent of the settlor when the trust was created governs, and subsequent modifications are effective only in the manner expressed in the trust instrument. Banks v. Central Trust and Inv. Co., 388 S.W.3d 173, 176 (Mo. Ct. App. 2012). Generally, the settlor can modify the trust only in the manner provided…
Standing: Breach of Trust and Trustee Removal
Trust law distinguishes between “qualified beneficiaries” and “beneficiaries.” A “beneficiary” is a person that has a present or future beneficial interest in a trust or holds a power of appointment over trust property. Section 456.1-103(3), RSMo. A “qualified beneficiary” is different. It includes a beneficiary who is currently eligible to receive trust distributions, as well…
Surviving Spouse Inheritance Rights
In Missouri, there are three main benefits a surviving spouse can receive in probate: (1) certain exempt property, (2) a one year support allowance, and (3) a homestead exemption. The surviving spouse automatically receives from the estate the family bible, one automobile, all clothing, electrical appliances, instruments, furniture, and utensils and implements. See Section 474.250,…
Specific Performance, Land, Costs
Specific performance is a contract remedy. It is when one party breaches a contract and the plaintiff asks the court to order the breaching party to perform its contractual obligation, rather than awarding money damages. Courts have discretion when it comes to awarding specific performance. Smith v. Najafi, 584 S.W.3d 389, 394 (Mo. Ct. App….
Illusory Promise, Breach of Contract
Contracts must be mutual to be enforceable. “Mutual” means there must be mutuality of obligation. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d 429, 443 (Mo. Ct. App. 2010). Contracts that give one party a right to cancel can be considered illusory. An “illusory promise” does not create a contract. It is neither enforceable, nor operative…
Exculpatory Clauses in Trust, Trust Litigation
An exculpatory clause is a provision which authorizes the trustee to engage in conduct that would otherwise be a breach of fiduciary duty. Before enacting the Uniform Trust Code, Missouri law was that “[a]n exculpatory clause is valid and not contrary to public policy…absent a showing that the settlor was improperly induced to insert it.”…
Expert Witness Standards in Probate
Section 490.065.1, RSMo governs the admissibility of expert testimony in all proceedings in the probate court. So, this applies to most or all trust and estate litigation, including breach of trust claims and trust contest claims. Among other things, the statute requires that the facts or data on which the expert relied must be the…
Power of Attorney Accounting Claims
A power of attorney is a document which authorizes one person — the agent — to act on behalf of another person — the principal. By statute, the principal may petition a court for an accounting of the agent’s activities under the power of attorney. In certain circumstances, the principal’s family may petition. Section 404.727,…