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.”…
Legal Articles
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…
Trustee Bond
A trustee’s bond is essentially an insurance policy which designates a sum of money that may be recovered to the extent a trustee mismanages a trust estate. For example, if a trustee has a bond, and misappropriates assets, a beneficiary may be able to initiate a claim for breach of trust and recover against the…
Trustee: Personal Liability
In breach of trust and/or breach of fiduciary suits, whether a trustee is personally liable often comes up. Section 456.10-1010, RSMo provides some points of clarification on the matter: (1) Unless provided otherwise in a contract, a trustee is not personally liable on a contract if the trustee discloses the trustee/fiduciary capacity in the contract….
Trusts, Principal Place of Administration
Trust litigation can often involve interstate disputes as to what state and county should hear and entertain the litigation. This is because trusts will often involve family members, trustees and beneficiaries who reside in different states. Many states have adopted the Uniform Trust Code as a means of providing more consistent laws on how trusts…
Trusts and Supervised Administration
A primary selling point for trusts is that they are generally administered independently and outside of the court. Rather than rely on court orders and instructions, the trustee distributes the property per the directives articulated in the trust instrument. While this may be a benefit in many circumstances, sometimes it is more beneficial to have…
No Contest, Forfeiture, In Terrorem Clauses: Wills & Trusts
To combat disputes and litigation about wills and trusts, estate planning attorneys sometimes advise clients to include a no contest, forfeiture or “in terrorem” clause in a will, trust or estate document. These clauses generally provide that if an heir or other party files a suit relating to the document he or she is disinherited….
Active Procurement: Undue Influence in Estate Litigation, Challenges
Undue influence is a common legal claim used in probate litigation to set aside, void or challenge a will, trust, deed or non-probate transfer. It is when the influencer substitutes his or her will for the person who is signing the document. Because this is a vague claim, Missouri cases have set forth three elements…
Estate Litigation; Time Limit to Appoint Personal Representative/Executor
Missouri’s probate code has two principal goals: (1) provide a speedy method for administering a decedent’s estate and (2) establish a time after which claims are forever barred against an estate. North v. Hawkinson, 324 S.W.2d 733, 736 (Mo. 1959). In furtherance of these objectives, Missouri rigidly applies a general one (1) year limitation period for…
Trust Fraud Challenge
Lack of testamentary capacity and undue influence are the two most common bases for challenging the validity of a revocable living trust. Though rare, however, it is possible to challenge a trust based on fraud. A trust is void to the extents its creation was induced by fraud, duress or undue influence. Section 456.4-406 RSMo….