The time limitation for challenging a revocable living trust is generally two (2) years after the settlor’s (i.e., trust creator) death. This two year period can be shortened in at least a couple of different circumstances, such as if the successor trustee sends a notice to all beneficiaries accelerating the time period to six (6)…
Legal Articles
Trustee Good Faith Discretion, Breach of Trust
A trustee has the duty to exercise the requisite care, skill and diligence of a person of ordinary prudence would exercise. Jarvis v. Boatmen’s National Bank of St. Louis, 478 S.W.2d 266, 273 (Mo. 1972). The specific actions necessary to accomplish this goal depends on the nature of the trust, particularly its assets and distribution schemes….
Work Product, Waiver
Confidential communications between attorney and client are privileged and generally exempt from discovery or disclosure. Attorney work product, both tangible and intangible, is also protected — and is often equally as important. Attorney work product applies to two different types of information: (1) opinion work product and (2) trial preparation materials. Opinion work product relates…
Spendthrift Clause Enforceability in Trusts
A spendthrift clause is a provision in a trust which prohbits a beneficiary’s interest from being assigned and prevents a creditor from attaching that interest. Bruce G Robert QTIP Marital Trust v. Grasson, 332 S.W.3d 248, 256 (Mo. Ct. App. 2010). What this means is that the beneficiary cannot voluntarily assign out the interest in the…
Liquidated Contract Damages, Reasonable Forecast of Damages
In breach of contract litigation, it is the responsibility of the party complaining of the breach to prove all of the damages/harm incurred which form the basis for the monetary request. Certain contracts include liquidated damages provisions. These types of provisions set forth the amount of damages in the event of a breach. Not all…
Forum Selection Clauses, Personal Jurisdiction
Personal jurisdiction is the authority of a court to render a judgment or decision about an individual or entity. For personal jurisdiction to exist, there must generally be some connection between a party and the state or forum rendering the judgment or decision. In may contracts or agreements, there are provisions designating where litigation must occur…
Power of Attorney Self-Dealing, Gifts
An attorney-in-fact is someone appointed by a principal under a power of attorney to make decisions on behalf of the principal. The decisions usually relate to financial or healthcare matters for the principal. An attorney-in-fact is a fiduciary of the principal and must act in the principal’s best interests. This generally includes an obligation to…
Recoupment, Counterclaims
If a claim is not timely filed within the applicable statute of limitations in Missouri, then it is usually barred. This is not always a simple analysis. There are different time periods for different claims and there are certain things which can toll or extend the time for filing. Although it is usually the concern of…
Contract Under Duress
In breach of contract litigation, many defenses are often lodged by a defendant to attack the validity of the contract or excuse his/her non-performance under the contract. Common defenses in contract litigation include accord and satisfaction, that there is a contractual ambituity, that the other party committed a first material breach, misrepresentation/fraudulent inducement, unconscionability and…
"Prevailing Party" in Contractual Attorney Fee Dispute
Parties to a lawsuit are usually responsible for their attorney fees, whether they win or lose. The only thing that changes this in Missouri is if there is a statute or contract which provides that a certain party receives his/her/its attorney fees. Link v. Kroenke, 909 S.W.2d 740, 747 (Mo. Ct. App. 1995). With respect to…