Legal Articles

Trust Language: “Necessary or Advisable” Distributions

The language of a trust is extremely important. And when a will, trust, and other estate documents form part of the same plan, they are interpreted together. Indeed, “[w]hen a trust and will form parts of the same plan, they must be construed together.” Shriners Hospital for Children v. Schaper, 215 S.W.3d 185, 189-90 (Mo….

Guardianship and Conservatorship: Reasonable Choice?

When picking a guardian or conservator, the Court must appoint the must “suitable” person. The Court must also follow a hierarchy in making its choice. At the top of this list, the Court must consider “any eligible person nominated” by the allegedly incapacitated person, provided the person can “make and communicate a reasonable choice.” Section…

Breach of Trust, Sole Discretion

Fiduciary and trust litigation can be very complex. In certain trust instruments, a trustee is granted “sole discretion” to do certain things. This language, however, can be very misleading. Even when a trustee is granted “sole discretion,” a trustee may be liable if the trustee willfully abuses his discretion, acts arbitrarily, fraudulently, dishonestly, or with…

Undue Influence

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…

Surviving Spouse Inheritance Rights

In Missouri, there are three main benefits a surviving spouse can receive in probate: (1) certain exempt property, (2) a one year support allowance, and (3) a homestead exemption. The surviving spouse automatically receives from the estate the family bible, one automobile, all clothing, electrical appliances, instruments, furniture, and utensils and implements. See Section 474.250,…

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