Some claims require proof of a person’s intent and state of mind. Unless someone admits to something, how do you get in there head and prove intent? For pleading purposes, “intent, knowledge and any other condition of mind of a person may be averred generally.” Rule 55.15. In an evidentiary context, “an admission of specific intent…
Legal Articles
Fraud, Statement of Intent, Future Act
Most fraud or intentional misrepresentation cases require that the misrepresentation relate to a present or past fact. A promise to take future action generally cannot form the basis for fraud. There is a difficult-to-prove an exception to this rule. “When a fraud claim is based on a statement of intent, the plaintiff establishes falsity by…
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…
Fraud Exceptions to Bankruptcy Discharge
In a Chapter 7 Bankruptcy, not all debts are subject to discharge. By way of example, debts or liabilities pertaining to a debtor’s fraud is not subject to discharge. 15 USC Sections 523(a)(2)(A) and 15 USC 523(a)(2)(B) are the two most commonly invoked sections by a plaintiff/creditor when trying to prove a fraud exception in…
Trust Contests: Clear and Convincing Evidence
It is generally difficult to prevail on a lawsuit to set aside and void a trust or will. “Wills are solemn acts” and “should be overturned only on proper and substantial evidence.” Switzer v. Switzer, 373 S.W.2d 930, 940 (Mo. 1964). The evidence to justify cancellation of a will or trust on grounds of incapacity…
Will Contests: Grounds, Necessary Parties
A last will and testament may be contested on numerous grounds, the most common of which include challenges for lack of capacity, fraud, duress, and/or undue influence. There are strict, specific deadlines for challenging a will. While the deadline varies, a will contest is usually pursued after a will is admitted to probate. An order…
Declaratory Judgment to Challenge Revocable Living Trusts
The use of revocable living trusts in estate planning is extremely common. Along with the rise of their use, challenges to the validity of revocable living trusts have also risen. Trusts may be contested on a number of grounds, the most common of which are lack of capacity, undue influence, fraud or duress. These claims…
Contract Liability and Tort Liability
When there is a contract in play, often times there is confusion when a plaintiff is making a claim whether the claim is for breach of contract or for tort liability. Sometimes a plaintiff will assert both contract liability and tort liability (e.g., fraud, negligence) for failure to perform contract provisions. This is usually impermissible. …
When you may be Personally Liable for LLC or Corporate Debt
One of the main benefits to forming a limited liability company or corporation is that the owners of the company are usually not personally responsible for the debts of the busness. There are exceptions to this general rule. First and foremost, if there is a personal guarantee for a business debt, then the personal guarantor…
Time Limit and Deadline to Challenge Will
A last will and testament in Missouri (and other states) may be challenged and voided. The most common grounds for a contest are lack of testamentary capacity, undue influence, fraud and/or duress. One of the goals in the estate administration process in Missouri is to have a quick, efficient manner of winding down one’s affairs….