Power of Attorney Litigation, Attorney Fees

Power of attorney litigation often occurs in conjunction with trust litigation. While there are similarities between the fiduciary duties of a trustee and attorney-in-fact, there are different statutory regimes and differing duties. As a general matter, a trustee’s fiduciary duties are more stringent and comprehensive than the duties of an attorney-in-fact.

Significantly, the power of attorney laws in Missouri contain a mandatory attorney fee provision. More specifically, the principal, or “successor in interest” to the principal, is entitled to recover their attorney fees when, among other instances, the attorney in fact engages in “willful misconduct” or “acts with willful disregard for the purposes, terms, or conditions of the power of attorney.” Section 404.717.5, RSMo.

A “successor in interest” in this context includes anyone who can prove they have been damaged as a result of the attorney-in-fact’s conduct. This may include a conservator, personal representative, or heir of the principal.

Related Articles

Determining a Grantor’s Intent in Trusts

November 4, 2023

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…

Read More

Successor in Interest, Powers of Attorney

September 21, 2023

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…

Read More

Non-Monetary Claims Against the Estate

August 10, 2023

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…

Read More

Will Contests, Self-Proving Wills

March 30, 2023

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…

Read More
Scroll to Top