Summary judgment disposes of a claim without a trial in any number of circumstances. It is rare, however, for a claim involving incapacity or undue influence — particularly in the context of a will contest or trust contest — to be disposed of on summary judgment. Summary judgment is rarely appropriate in cases involving proof…
Legal Articles
Probate: Effect of Adjudication of Incapacity
In probate litigation in Missouri, the effect of an adjudication of incapacity or disability does not necessarily mean a person lacks capacity for all purposes after the date of adjudication. Specifically, a person who has been adjudicated partially incapacitated or disabled shall be presumed to be competent. See Section 475.078, RSMo. In the event of…
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 Contest, Multiple Wills, Res Judicata
If a will contest is successful, then the legal effect is that the will is invalid and void. Section 473.083.7 (A will contest determines “intestacy or testacy or which writing or writings constitute the decedent’s will.”). Accordingly, assuming there is no prior will, the Court finds that the person died intestate/without a will in the…
Incapacity, Business Transactions
Legally, several things happen when someone is adjudicated as incapacitated and a guardian or conservator is appointed for the protectee (i.e., the incapacitated person). Perhaps most significantly, the protectee loses his or her right to enter into business transactions. Instead, it is the conservator’s responsibility (usually with court approval) to enter into such transactions. Section…
Incapacity in Litigation, Mental Examination
When a party is adjudged legally incapacitated, a guardian or conservator typically represents the incapacitated individual’s interests in legal disputes. In certain circumstances, however, a party is for all intents and purposes incapacitated but a guardianship proceeding has never been commenced and there has not been a judgment of incapacity. And because individuals are generally presumed to…