Legal Articles

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,…

Transfers in Fraud of Marital Rights in Relation to Nonprobate Transfers

A claim that a transfer of property is in fraud of marital rights is where a spouse, after the death of the other spouse, seeks to set aside and void a property transfer. It is a unique type of fraud, separate and distinct from the traditional fraud which consists of nine elements. “If established, the…

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