Category Archives: Probate Administration

Factual Background:

Illegitimate daughter of testator sought a share of the testator’s estate as an omitted child.  A paternity test proved testator was Petitioner’s father.  He paid ordered child support, but provided her no other support.  He did not develop any parental relationship with her and had minimal contact with her.

Held:

Daughter was not entitled to an intestate share as an omitted child under §474.240 because she had not been recognized by her father as his child.

On Appeal:

Reversed and remanded.  Court held that evidence supported finding that testator, during his lifetime, had “recognized” petitioner as his child, and thus daughter was entitled to a share of testator’s estate as an omitted child.

Sole issue on appeal was the meaning of the term “recognize” in §474.240, which addresses inheritance rights for children born after execution of a testator’s will.  Subsection 3 of §474.240 provides that the illegitimate child is entitled to the above-mentioned intestate share of the decedent’s estate if the decedent recognized the child as his, either in the will or while the testator was alive.  The subsection provides “an illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his.”

Court found that the word “recognize” does not refer to the qualitative relationship between the father and child, but rather whether the father recognized that the child was biologically his during his lifetime.

Factual Background:

The administrator ad litem of the estate brought suit against the former personal representative and State Farm (surety) alleging breach of fiduciary duty.  State Farm moved to dismiss on the basis that the administrator’s action was barred by the one year statute of limitations in §473.213.

Held:

Trial court dismissed the affirmative defense, denied the motion to dismiss, and after receiving evidence, entered judgment for administrator and ruled that surety was jointly and severally liable for the amount of the bond.

On Appeal:

Affirmed.  Removal of the personal representative was not a “discharge” that commenced the running of the one-year statute of limitations.  For discharge to occur, specific procedures must be followed and an order of discharge issued by the court.  In this case, the trial court had not entered an order of discharge to allow the one-year clock in §473.213 to begin running.

Factual Background:

Plaintiff filed suit against Defendant-Doctor alleging malpractice.  After trial, the jury returned a verdict in favor of Defendant-Doctor.

Plaintiff filed an appeal but then died while the appeal was pending.  Plaintiff’s sister and executrix filed a suggestion of death pursuant to Rule 52.13[1], which states in pertinent part:

“Unless a Motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.”

The appeal was stayed until a motion for substitution was filed or ninety days from the filing of the suggestion of death, whichever occurred first.  The executrix did not timely file a motion for substitution.  The Staff Counsel from the court sent a fax to the executrix’s counsel requesting that the appeal be dismissed pursuant to Rule 52.13(a)(1).  The executrix filed suggestions in opposition to the dismissal claiming excusable neglect.  She claimed that she relied on the dates in Case.net, which were not accurate.

On Appeal:

Dismissed without prejudice.

When a party dies, Rule 52.13 requires a motion for substitution to be served within ninety days of the filing of a suggestion of death.  Under Rule 44.01(b), the court may extend the time limit for filing in its discretion or for cause shown.  The time limit may also be extended if a party can show that the missed deadline was the result of excusable neglect.  However, under 44.01, “the court … may not extend the time for taking any action under rule 52.13… . 

The executrix did not file the motion for substitution until the ninety-second day after she filed the suggestion of death.  Regardless of the reason for the missed deadline, the Court of Appeals did not have the any “inherent, equitable authority to substitute a party after death; …only to substitute as allowed by statute and rule.”  The case was dismissed without prejudice.

Factual Background:

On June 21, 2003, Decedent died testate.  Her last will and testament provided for her estate to be split equally among her three sons: Appellant, M, and J (and his wife, D).  On August 8, 2003, D presented the will for probate and filed an affidavit for collection of small estate.  On September 29, 2003, appellant filed a petition for accounting against M, J, and D for actions taken by them in their capacity as Decedent’s durable power of attorney.  During discovery for the accounting, D discovered a bond payable to Decedent that she did not previously know about.  On March 30, 2005, D filed an application for letters testamentary, explaining that the newly discovered bond caused Decedent’s estate to exceed the limits of a small estate.  On March 31, 2005, the probate court issued letters testamentary to D.  On July 15, 2005, D and M filed claims against the estate for expenses incurred in making the accounting.  On August 18, 2005, M field a “Petition to Impose Lien” upon the estate pursuant to a provision in the durable power of attorney stating that if an accounting was required by the attorneys in fact, then reimbursement would be taken out of property under their control and from the estate.  On September 15, 2005, Appellant filed a motion to set aside the letters testamentary.

Held:

On October 18, 2005, a hearing was held on all matters.  On December 9, 2005, the probate court entered its judgment, sustaining petitions for imposition of lines in favor of M and J.  Further, the court found that the Letters Testamentary issued to D were properly issued.

Appellant filed this appeal on January 3, 2006

On Appeal: 

Dismissed because the appeal was not timely filed.

Previously, the Court of Appeals for the Southern District of Missouri held orders which were appealable pursuant to Section 472.160 were governed by Rule 81.05.  Under Rule 81.04(a), no appeal is effective unless notice of the appeal is filed no later than ten days after the judgment becomes final.  Most orders of the probate court are interlocutory and are not subject to appeal until final disposition of matters before the court.  However, if an order falls within the exceptions listed in Section 472.160.1, it is deemed final for the purposes of appeal.  Such an order is appealable upon entry.  To the extent that prior cases hold otherwise, they are overruled.

Here, the order falls within the exceptions listed in Section 472.160.1. The probate court’s judgment was final when it was entered on December 9.  Therefore, the notice of appeal filed on January 3 was untimely and the appeal was dismissed.

Concurring Opinion:

Section 472.180 requires that all appeals are taken within the time prescribed by the rules of civil procedure relating to appeals.  Rule 81.04 states that a notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final.  An interlocutory probate order which may be appealed pursuant to Section 472.160 should be appealed within ten days.  Because the appeal in this case was not filed for twenty-five days, the appeal was untimely and should be dismissed.

The Dissent would like to apply the provisions of Rule 81.05 to this case.  Applying the provisions of Rule 81.05 to an interlocutory order is unsound.  The plain language applies only to judgments.  There is a delay built into Rule 85.01 to allow for the trial court to vacate, correct or amend its judgment.  Once that time limit elapses, the trial court loses jurisdiction.  Applying Rule 85.01 to interlocutory appeals could extend the time limit for filing an appeal up to 120 days and that delay is inconsistent with the purpose of section 472.160, which is to allow for expedited appeals from certain orders.

Dissenting Opinion: 

The probate court’s order was not final, and the notice for appeal was timely filed.  The finality of an interlocutory order should be determined by also applying the provisions of Rule 81.05.

Factual Background:

Beneficiaries, who were awarded real property under testator’s will and who were in physical possession of property during administration of estate, filed claim against estate to recover insurance proceeds and cost of repairs.

Mrs. Shaw owned 320 acres in Clinton County on which the McKowns ran a cattle operation. Mrs. Shaw died in July 2003 and devised all 320 acres, the two houses, and various farm buildings to the McKowns. The remaining estate assets, including real estate in Holt County, as well as stocks and bonds inventoried at $1,400,000, were bequeathed to the Shriner’s Hospital for Children and the St. Jude Children’s Research Hospital.  Two days after Mrs. Shaw died, the independent personal representative of her estate, Wesley Troutt (“the Independent Personal Representative” or “IPR”), contacted the McKowns and informed them of the devise. He told them that the Clinton property “was theirs to do with as they saw fit,” and they “could move in or remodel the [main] house.” A potential claim arising from the Holt County real estate, and unrelated to the Clinton property, required that the estate remain open indefinitely. The Clinton property, or some part thereof, might have been required to defray the costs of estate administration, to pay for federal or state estate tax liabilities, or to pay possible estate obligations arising from the pending litigation in Holt County.

Although not required under the will or by law, the Independent Personal Representative agreed to maintain insurance and pay property and personal taxes and utilities on the Clinton property during probate of Mrs. Shaw’s will. At the date of Mrs. Shaw’s death, the McKowns were already in possession of the keys to the main house as well as the home and buildings they had been renting. At all times during the estate administration, the McKowns lived and operated their business on the property.

Shortly after the decedent’s death, the McKowns requested that the IPR make repairs to the main residence and other parts of the farm.  The IPR declined.  In September 2004, the IPR informed the McKowns by letter that the property was transferred to them from the estate of Pauline Shaw and that the estate would no longer pay the utilities, taxes, or insurance on the property. In January 2005, the McKowns made the present claims for reimbursement against the estate totaling $44,458 for repairs to the property. They also demanded the insurance proceeds arising from damage to the property after a storm in 2004. The McKowns received a deed to the property in February 2005.

Held:

Following a bench trial, the Circuit Court, Clinton County, Paul T. Luckenbill, Jr., J., denied claim. Beneficiaries appealed.

On Appeal:

The Court of Appeals, Harold L. Lowenstein, J., held that:

(1) independent personal representative (IPR) did not take possession of real property devised to beneficiaries, and (2) beneficiaries’ repairs and improvements were not necessary to preserve or protect estate assets.  Affirmed. To hold testator’s estate responsible for cost of repairs that beneficiaries undertook regarding real property devised to beneficiaries, beneficiaries were required to show both that independent personal representative was in possession of property and that repairs were reasonably necessary to preserve property. Independent personal representative (IPR) did not take possession of real property devised to beneficiaries under testator’s will and thus could not be charged with preservation and maintenance of property; beneficiaries had physical possession of property during entire estate administration, IPR never requested keys to main house or blocked beneficiaries’ access to property, and beneficiaries never consulted with IPR about repairs and improvements after inquiring whether estate would pay for repairs to main house’s roof. V.A.M.S. § 473.803.

Upon death of a property owner, both title and power of control of real property goes directly to the heirs or devisees, and the executors have no concern with it. Under statute governing independent personal representative’s right to decedent’s property, a devisee holds the property subject to possession by the personal representative if the personalty proves insufficient and the devised real property is required to defray administration expenses, claims, or taxes. V.A.M.S. § 473.260.

Under a supervised administration, the personal representative of an estate cannot obtain possession of real property in the hands of a devisee for estate administration purposes without a court order. V.A.M.S. § 473.263. Personal representative of an independently administered estate does not require a court order to take possession of the real property if the property is required for estate administration. V.A.M.S. § 473.263. If the independent personal representative does not act to take possession of real property from devisee or communicate that he is taking possession, then possession remains in the hands of the devisee. V.A.M.S. § 473.263.

Even if the McKowns could establish that the IPR had taken possession, or even constructive possession, of the real property, the record was replete with sufficient evidence from which the probate court could conclude that the repairs, and proposed repairs, were never necessary to preserve or protect the estate’s assets.

Factual Background:

The DeLaRosa Estate was opened in 1991, with Derrick DeLaRosa being the sole beneficiary thereof.  Nancy Coyner was appointed personal representative and conservator to the estate.  The Estate’s funds were deposited into an estate savings account with Farmers State Bank.  Acting with her power as personal representative and conservator, Ms. Coyner misappropriated larger sums of money from the estate: On January 28, 1995, Coyner withdrew $64,664.17 worth of estate funds and placed them in a joint account with Farmers Bank held by Ms. Coyner and her daughter; On January 31, 1995, Coyner used estate funds to open three custodial savings accounts in the amount of $10,000 each at Farmers Bank in the names of an for the benefit of her three grandchildren and withdrew $34,664.17 or $44,664.17 in cash from the Estate account; and in early 1995 and early 1996 Coyner wrote there checks, payable to the bank, drawn from an Estate Account held at a Roosevelt Bank in the amounts of $20,000, $9,000 and $10,000.  When Coyner passed away, a new personal representative and conservator was appointed who determined that the aforementioned transactions had been unauthorized.  The Estate filed suit against Farmers Bank in an attempt to recover the funds wrongfully appropriated.  The Circuit Court, Vernon County, Bickel J., granted summary judgment in favor of Farmer’s Bank.  The Estate appealed.

On Appeal:

A bank cannot be held liable for allowing a fiduciary to fraudulently misappropriate monies under their control unless the Bank has either actual knowledge of the fraudulent taking or acted in bad faith with respect to the misappropriation—knowledge of facts which create a mere suspicion of misappropriation is not sufficient.

Rationale:

The Uniform Fiduciaries Law, as adopted by Missouri, specifically acts to limit bank liability when a fidicuiary misappropriates funds.  RSMo. §§ 469.270 and 469.310 explicitly provide that a bank is not bound to inquire whether a fiduciary is committing a breach of his obligations when accepting or paying an instrument unless the bank has actual knowledge of some breach or with knowledge of such facts that his action in accepting or paying the instrument amounts to bad faith.  Further, mere negligence is insufficient to amount to “bad faith.”  Here, while the bank could have been alerted to the fraud through anti-fraud internal control reports and a forfeited interest report which listed a number of possible suspect transactions, these reports provided nothing more than mere suspicions of Ms. Coyner’s misappropriations.  The failure to take note of these suspicions did not constitute “bad faith” on the part of Farmer’s Bank, and therefore were mere negligent omissions which did not create a duty to investigate.  As a result, the Farmers Bank incurs no liability stemming from the bad acts of Ms. Coyner.  Thus, the trial court’s grant of summary judgment in Farmer’s favor was proper.  Judgment affirmed.

Factual Background:

Earl Conard died intestate on April 7, 2006, and pursuant to the Missouri Probate Code, notice that Letters of Administration were issued was published on May 3, 2006.  As a result, and pursuant to RSMo. §473.360.1, claimants had until November 3, 2006 to file claims against the Estate.  On July 14, 2006, William, Linda and Jay Engel (“the Engels”) filed three hand written pro se claims against the estate.  The first claim, was a claim for $7,337.50 for Earl Conard’s funeral expenses.  The second claim was for $89,136.00 for costs incurred in managing and servicing the Earl Conard’s cow heard.  The third claim was for $1,993.88 for services provided in “getting Earl Conard’s cattle to sale.”  However, none of the claims were signed by any of the parties.  On January 29, 2007 counsel for the personal representatives of the estate noted for the record and had the court take judicial notice of the fact that the Engels claims failed to comply with RSMo. §472.080.1 in that they did not contain a statement that the claim was made under oath or affirmation and that its representations were true and correct to the best knowledge and belief of the person signing it under penalty of perjury.  As a result, the Circuit Court of Worth County, Fischer, J., dismissed the claims.  On January 31 and February 20 of 2007 respectively, the Engles then filed First and Second Amended Claims against the Estate which were properly signed.  The Circuit Court dismissed both Amended Claims with prejudice, citing the failure to properly sign the original claims as the sole basis for the dismissal.

On Appeal:

Where a filing party fails to properly sign its claims against an estate, such an omission is not fatal unless the filing party has failed to promptly correct the omission after it is called to their attention.

Rationale:

While RSMo. §472.080.1 explicitly states that any claim against an estate must be “signed by the claimant” it does not specify a sanction for a claimant’s failure to file a properly signed claim prior to the claims bar date.  The Missouri Supreme Court Rules of Civil Procedure 55.03(a) (which explicitly applies to probate proceedings by operation of Rule 41.01(b)) provides that: “an unsigned filing…shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party filing the same.”  As a result, the Engels failure to sign their claims was not per se fatal—the lack of a signature would only provided a basis for dismissal if the Engels failed to promptly correct the omission after being notified.  Here, the Engels were not notified of their failure to sign their claims until they were dismissed on January 29, 2007.  Two days later, the Engels filed an Amended Claim which was properly signed and notarized as required by RSMo. §472.080.1.  It is without question that the filing of this Amended complaint acted as a “prompt correction” to the omissions in their original claims against the estate.  As such, the Amended Complaints properly relate back to the initial claims and therefore were timely filed.  The trial court’s dismissal of the Amended Claims was improper—reversed and remanded.

Factual Background:

George Sydney Davis was married to Agnes Moreau Davis in 1903.  From this marriage, eight children were born.  During the marriage George Davis moved away from his wife and children, but was never legally dissolved the marriage.  In 1944 George Davis fathered a child by Evelyn Alice Rishovd.  This child was Thomas Edward Rishovd Davis.  George Davis and Alice Rishovd held themselves out as a family while raising their only child.  In 1957, George Davis died intestate.  However, neither Evelyn Rishovd nor Thomas Rishovd Davis were listed as heirs of his estate.  In 2003, Thomas Rishovd Davis died intestate.  DNA testing confirmed the fact that Thomas Rishovd Davis was in fact the biological son of George Sidney Davis.  Thomas Rishovd Davis’s half siblings whom where a product of the George Davis and Agnes Moreau Davis union sought to collect their intestate share of Thomas Rishovd Davis’s estate.  The Circuit Court of Laclede County, Hutson, J., agreed, awarding the Davis Family their intestate share of Thomas Rishovd Davis’s estate based on their blood relationship as half siblings to the decedent.  The remaining heirs at law objected, arguing that the Davis Family had failed to prove by clear and convincing evidence that George Davis had legitimated Thomas Rishovd Davis by showing that George Davis financially supported Thomas Rishovd Davis, and therefore were barred from claiming any share in the decedent’s estate.

On Appeal:

In order for the father of an illegitimate child or any of his heirs to inherit from that child’s estate, they must establish by clear and convincing evidence that there existed a paternal connection between the father and the illegitimate child, that the father openly treated the illegitimate child as his own, and that the father supported the illegitimate child.  When proving that a father has supported his illegitimate child, proof by clear and convincing evidence can be shown through the testimony of witnesses and inferences of the source of the child’s support—actual evidence of the source of the funds, such as bank accounts or pension records, utilized to support the child are not necessary.

Rationale:

Where a father has refused to marry the mother of his illegitimate child, in order for that father or that father’s kindred to inherit from the illegitimate child’s intestate estate, they must establish, by clear and convincing evidence, (1) the paternal connection between the father and the illegitimate child, (2) that the father openly treated the illegitimate child as his own, and (3) that the father supported the illegitimate child.  All there elements must be proven by clear and convincing evidence.  Here, the DNA testing had proven the requisite paternal connection between the George Davis and Thomas Rishovd Davis and it was uncontested that George Davis held Thomas Rishovd Davis out as his child.  Thus, the only issue potentially barring the ability of the Davis family to inherit from the estate of Thomas Rishovd Davis, was the question of whether George Davis had financially supported his son.  To prove this support, the Davis Family provided testimony of nine witnesses who stated that they perceived George Davis to be the father of Thomas Rishovd Davis, all of which stated that they had inferred that George Davis had utilized his army pension to provide for both Thomas and Evelyn Rishovd.  However, these witnesses conceded that they did not know the exact source of the funds utilized to provide and care for Thomas Rishovd Davis given that Evelyn did not work outside the home.  The court reasoned that the inferences on the part of the witnesses as to the source of the funds utilized to care for the child was sufficient to constitute clear and convincing evidence that George Davis had financially support Thomas Rishovd Davis.  As a result, the Davis Family could properly inherit from Thomas Rishovd Davis’ intestate estate.

Factual Background:

Decedent died on April 11, 2005.  Prior to his death he had been receiving public assistance benefits through the State Medicaid program.  The decedent’s will provided that upon his death the entirety of his estate would be devised to the “George S. Macormic Revocable Trust,” which named as trustees, Lance Macormic and Cecilia Stogsdill.  The trustees of the trust sold the property at auction and distributed it amongst the beneficiaries of the trust.  Pursuant to RSMo. §473.398 the State sought to recover its public assistance expenditures from the decedent’s estate as a creditor of the estate.  The trustees sought to dismiss the petitions, arguing that the State was not a proper creditor of the estate to demand an accounting.

Held:

The Circuit Court of Phelps County, Judge Ronald White, dismissed the petitions stating that the State lacked standing to file such petitions and closed the estate.  The State of Missouri appealed.

On Appeal:

The State of Missouri, becomes a creditor of an estate when it seeks to recover public assistance expenditures from a decedent’s estate, and like any other creditor of an estate, may properly move for the discovery of assets and for an accounting.

Rationale:

RSMo. §473.398.1 provides that a decedent who accepts Medicaid benefits from the state owes a debt to the State for “the total amount paid to the decedent or expended upon his behalf.”  This debt necessarily survives the death of the decedent in that RSMo. §473.398 specifically states that it can be collected from the estate of the deceased.  Further, RSMo. §473.340 provides that “any creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate has standing to file a petition for discovery of assets.”  Thus, it follows that because the State becomes a proper creditor of a decedent Medicaid beneficiary, and that this creditor status survives the death of the beneficiary and any such creditors may properly move for a discovery of assets, then the State, having provided the decedent with benefits could properly move for an accounting and discovery of assets as an interested creditor in the estate.

Factual Background:

Jessie Ann Olsen and Joseph Olsen were married on March 20, 2004.  After only a few months of marriage, Husband filed a petition for dissolution of marriage.  Six days later, the parties met at the offices of an attorney and exercised a “Separation Agreement and Property Settlement” in contemplation of divorce.  The agreement distributed both marital and non-marital property and debt, but stated nothing regarding a release of claims against the other party nor did it specifically waive a right to inheritance.  Before the marriage was dissolved, Husband was killed in a motor vehicle accident.  The trial court refused to distribute any portion of the deceased’s estate to Wife, reasoning that the Separation Agreement was a fully executed post-nuptial agreement and that the court’s “inherent power to adjust equity between the parties…to meet demands of justice” required that the estate instead be distributed to the decedent’s two daughters from a previous marriage.

Held:

Whether an agreement is classified as a post-nuptial agreement or an executory separation agreement, any relinquishment of rights of inheritance must be explicit.  In the absence of either a dissolution decree or a properly and fully executed waiver of marital rights, neither the act of separating, nor the intention to dissolve the marriage, nor the pendency of a dissolution can operate to sever the marital rights of a party, irregardless of the court’s sense of equities and justice.

On Appeal:

Marital rights of inheritance and the relinquishment of those rights are recognized and governed by statute in Missouri.  One may waive and release such rights, but only by a written agreement that is in compliance with Section 474.120.  In spite of this statutory language the trial court believed that equity and fairness would be best served by a ruling against the Wife, presumably because the marriage lasted only a few months and the decedent had two daughters.  The court in seeking to find a waiver of marital rights, decided that the “separation agreement” between the parties was not merely an executory separation agreement, but was also a valid and fully executed post-nuptial agreement.  The trial court could not find an express waiver of marital rights in the agreement and thus had to rest its ruling on the equities and its sense of justice.  No matter how the agreement is classified it failed to expressly waive any marital rights, and did no more than settle certain property rights between the parties.  As such it fails to meet the requirement for waiver under §474.120 and can not be read to release the Appellant from her right to inheritance no matter the trial courts feeling of equity on her receipt of such property.