An undue influence claim is one of the two most common ways to legally attack a trust, will, or non-probate transfer. There is a “presumption” of undue influence if: (1) the influencer obtains a substantial benefit from the document, (2) the influencer was active in procuring the document, and (3) there was a confidential relationship…
Legal Articles
Estate Challenge Burdens: Trusts, Non-Probate Transfers
Unlike an “ordinary” civil suit, the evidentiary burden in an estate contest based on incapacity is often on the defendant to prove that the signer had the requisite capacity. In a lawsuit challenging a trust based on testamentary incapacity, the proponent of the document must establish due execution and that the person signing had sound…
Undue Influence Between Spouses/Husband and Wife
Undue influence is a legal theory which may be used to invalidate a document, usually a will, trust or non-probate transfer. Undue influence occurs when a signer of a document is influenced by “force, coercion, or overpersuasion” such that it destroys the signer’s free agency. Tobias v. Korman, 141 S.W.3d 468, 475 (Mo. Ct. App….
Omitted Spouse, Non-probate Transfer
Part of the reason that probate litigation is complex is because there are procedural and substantive differences in how will, trust, joint ownership and non-probate transfer disputes are handled — even though these devices are often used by individuals interchangeably. With wills, pursuant to § 474.235, RSMo an “omitted spouse” is granted the right to…
Additions to Trust, Funding, Lapse
A trust is really only efficacious to the extent assets are titled and owned by the trust. To transfer assets to a trust, there must be a formal conveyance to the trust or trustee of the trust. Certain assets will have to be transferred and re-titled in different ways. With real estate, for instance, there…