Category Archives: Will & Trust Contests

Factual Background:

Decedent, Elden Choisser, executed a last will and testament on August 17, 2005, in which he made specific bequests of personal property to plaintiff, Mike Orville, Lorayne Pletting, a technical school, and certain public libraries. He left his real estate to defendant, Gregory Sansone. He left one-half of his residuary estate to plaintiff and one-half to Ms. Pletting. He named defendant as his personal representative.

Decedent died on August 18, 2005. On September 12, 2005, defendant filed his Application for Probate of the Last Will and Testament of Elden Choisser and his Application for Letters Testamentary in the probate division of the Circuit Court in Washington County. The matter of “In the Estate of Elden Choisser” was opened in the probate division. The probate division did not admit the will when the application was filed.  On November 2, 2005, plaintiff filed a will contest petition with the clerk of the probate division of the Circuit Court of Washington County. The petition named defendant as the sole defendant.

On April 28, 2006, the probate division admitted the will to probate and appointed defendant personal representative of decedent’s estate. The probate division clerk first published notice of letters testamentary on May 4, 2006.  Defendant subsequently moved to dismiss the will contest for lack of subject matter jurisdiction on the grounds that 1) the petition was filed with the clerk of the probate division and not with the circuit court, and only the circuit court had subject matter jurisdiction, and 2) no petition was filed with the clerk of the circuit court within six months of the publication of the Notice of Letters Testamentary.

Held:

The probate division dismissed plaintiff’s will contest petition for lack of subject matter jurisdiction, and it thereafter entered a judgment of dismissal. Plaintiff appealed.

On Appeal:

The Court of Appeals held that:

1. filing of will contest with clerk of probate division rather than clerk of circuit court did not deprive the circuit court of subject matter jurisdiction, and
2. filing of will contest before statutory prerequisite of acceptance or rejection of will to probate deprived the trial court of subject matter jurisdiction.  Section 473.083 presupposes that the acceptance or rejection of the will by the probate division is a condition precedent for a will contest.  In this case, the will contest petition was filed over five months before the will was admitted to probate. Accordingly, the circuit court had no subject matter jurisdiction at the time it was filed. When a trial court has no subject matter jurisdiction because a condition precedent to jurisdiction has not occurred at the time the petition is filed, the trial court must dismiss the action as prematurely filed.

Factual Background:

Four months after the death of her husband, Lois Kell married Tony Pulley, a man more than twenty years her junior.  Lois brought substantial assets, most held in real estate, to the marriage.  Pulley, on the other hand, brought little or no assets to the marriage, and had substantial outstanding financial liabilities.  Prior to their marriage Lois created a revocable trust which was funded by the various properties she owned as well as with other various personal property, which was to provide for Lois’s children upon her death.  The Trust, however, explicitly left nothing to Pulley.  In addition to the Trust, Lois and Pulley executed an antenuptial agreement in which Pulley waived any right he may have had to the Trust assets.  As consideration Lois waived any rights she had in the assets Pulley brought to the marriage.   While Lois drafted these documents, she failed to draft a new will, and she continued to utilize a will drafted when she was still married to her first husband, providing him with the majority of her estate.  At the time of her death in 2004, Lois died testate with this will still in effect.   Upon her death Pulley sought to have the will, trust, and antenuptial agreement set aside as void, arguing that (1) he was owed an intestate share of the estate as a pretermitted spouse, (2) that the antenuptial agreement was invalid contract because it lacked adequate consideration, (3) that the antenuptial agreement was invalid because Ms. Kell had failed to properly disclose her assets, and (4) that he was overreached during the execution of the antenuptial agreement for lack of proper assistance of counsel.  The Circuit Court of Ray County, Busch, J., held that Pulley was a pretermitted spouse and awarded him an intestate share of Lois’s probate estate and invalidated the antenuptial agreement as void and unenforceable.

Held:

1. Where a testator fails to provide for their surviving spouse, and nothing indicates that the omission was intentional and that no non-testamentary disposition was made to the surviving spouse, then the surviving spouse qualifies as a pretermitted spouse pursuant to RSMo. §474.235 and therefore is entitled to his or her intestate share of the probate estate.
2. Financial consideration is not required to support an antenuptial
   agreement—the consideration must only be fair under all the circumstances.  A mutual waiver of rights to the other spouse’s estate is per se sufficient consideration to support an antenuptial agreement.
3. A full disclosure of the relative financial positions of the parties is not required for an antenuptial agreement to be enforceable—the disclosures made must only be sufficient for the spouse against whom enforcement is sought to evaluate the extent and nature of the property under the agreement.  Further, disclosure need not be in the document itself, and constructive disclosure of the assets is sufficient.
4. A party to an antenuptial agreement cannot seek to have it set aside for lack of legal counsel where the party did not voice concerns about the consequences of executing the agreement at the time of execution and did not seek to protect his or her self in any way.  In such a situation, the party may not then claim that he or she was overreached once enforcement is sought.

Rationale:

Here, Pulley qualifies as a pretermitted spouse.  Lois failed to make a testamentary disposition for him as her surviving spouse, and no new will was executed by her after her marriage to Pulley.  Nothing indicates that the omission of a testimentory disposition in Pulley’s favor was intentional, and nothing indicates that any non-testamentary provision was made for Pulley.  As such, Pulley squarely qualifies as pretermitted spouse, and is entitilted to an intestate share of Lois’s probate estate by operation of RSMo. §474.235.

While Pulley’s waiver of rights was of far more value than Lois’s waiver of similar rights under the antenuptial agreement, such inequality in the value of the rights waived is of no consequence.  Here, in exchange for Pulley’s waiver of rights to Lois’s property in the trust, Lois agreed to waive any rights she may have had in Pulley’s assets.  All that is necessary is that each has waived some right to the assets of the other.  The disparity in the relative wealth of Lois and Pulley does not invalidate the consideration provided as the law does not require an exact equivalence between the rights being waived.

While the antenuptial agreement between Lois and Pulley listed a number of Lois’s assets, and particularly those real properties held by the trust, not all assets held by the trust at the time of Lois’s death were disclosed therein.  However, a failure to disclose each and every asset in the trust does not invalidate the agreement.  Pulley still had constructive notice of all assets held by the trust.  During their dating, Pulley toured Lois’s properties with her, knew their square footage, and was told which were or were not rented.  Such constructive notice was sufficient.  As a result, Pulley had knowledge of all of Lois’s assets in question.

Here, it cannot be said that Pulley’s lack of counsel before signing the antenuptial agreement constituted overreaching.  Lois had expressed to Pulley her desire to preserve her property for her children.  Pulley never attempted to read the document before signing, even though he was provided ample opportunity to do so.  He never sought legal counsel with regard to the agreement, and conceded that he was never stopped from seeking such counsel.  He conceded that he freely and voluntarily signed the agreement, and that he could have refused to sign it.  Most importantly, Pulley did nothing to protect himself at the time of execution of the document, but rather, waited until Lois was deceased to claim that he had been overreached.  For the trial court to claim lack of counsel as the only means of finding overreaching was a misapplication of the law.

Factual Background:

In 1995, Christine Loetel executed an irrevocable trust agreement.  The Trust specifically prohibited her from exercising a power of appointment in favor of her father, purportedly because he had little contact with her and was a financially unstable alcoholic, in addition to other personal reasons.  Christine was physically limited by cerebral palsy at the time of execution, but she suffered from no mental impairment.  Christine’s mother and attorney discussed the provisions of the trust with Christine and Christine made changes to the document to better reflect her wishes.  However, though it was discussed, she never disputed the provision that prevented her from exercising a power of appointment in favor of her father.  The Trust included a bequest to Christine’s sister and provided that remaining funds be used for charitable purposes; a bequest to Christine’s mother in the amount of $1 was removed at the mother’s request.

In 2003, while visiting her father, Christine drafted a letter to a Florida attorney expressing unhappiness with the way the Trust was set up.  After a meeting with Christine, the attorney drafted a will for her that contained a power of appointment to her mother, father, and sister.  The attorney told Christine the appointment to her father might not be effective because of the provision in the Trust and recommended she consult with a Missouri attorney about following the procedures in the Trust or revoking the Trust.  Christine declined this advice.  Christine died in 2005, and thereafter the Co-Trustees learned about the 2003 Will purporting to exercise a power of appointment in favor of her father.  The Co-Trustees filed a declaratory judgment action to ascertain the legal effect of the 2003 Will.  Christine’s father, David Loetel, filed a counterclaim and cross-claim alleging the Trust had been created as a result of undue influence or mistake and that the Trust had been amended by the 2003 Will and that Christine had validly exercised her power of appointment in his favor.

Held:

The Circuit Court of Greene County denied David Loetel’s claims and determined that Christine’s subsequent exercise of her power of appointment in David’s favor was invalid.  David Loetel appealed.

On Appeal:

Affirmed.  Where there is no evidence that a person having a confidential and fiduciary relationship with the settlor received a pecuniary benefit because of a trust’s creation, there can be no presumption of undue influence in the creation of the trust.  It follows that if the trust is not a creation of undue influence or mistake, then a subsequent provision in a will that violates the terms of the trust will be invalid.

Rationale:

A presumption of undue influence arises when a party presents substantial evidence of: 1) the existence of a confidential and fiduciary relationship; 2) a benefit being conferred upon the fiduciary; and 3) some additional evidence from which undue influence may be inferred.  Before a presumption of undue influence can arise, there has to be evidence that a fiduciary received a pecuniary benefit as a result of the trust being created.  When a fiduciary’s only possible benefits are an unexercised power of appointment that might be exercised in her favor and settlement of a disputed claim by the Co-Trustees twelve years after the trust was executed, those are not benefits that resulted from the creation of the trust.

For a provision in a trust to be regarded as included by mistake, the evidence must show that the provision does not accurately reflect the settlor’s intent at the time of execution of the trust.  Where the evidence shows that the settlor was actively involved in the creation of the provisions of the trust, was explained the provisions and allowed to make changes, and never expressed disagreement with a particular provision, that provision will not be considered included by mistake.  Subsequent manifestations of vague “unhappiness” with the trust are not sufficient evidence of mistake to permit posthumous reformation of the trust.

Factual Background:

Testator died on March 24,2007.  His will was admitted to probate on April 17, 2007.  The petition to contest the will was initiated on October 22, 2007 by plaintiffs, all of who are siblings of the deceased.  The petition named the eightenn devisees in Testator’s will as defendants.  Plaintiffs requested issurance of summons upon the defendants simultaneously with the filing of their petition. On October 23, 2007, the Saline County clerk prepared and forwarded summons for service of process upon the defendants.  The defendants resided in seven states, and fifteen were non-residents of Missouri.  Service of process of sixteen of the defendants occurred without incident. However, service of process for two of the defendants residing in separate counties in California was delayed, in part, by multiple and separately identified procedural hurdels that the counties imposed upon Plaintiffs, including additional notary fees and signature requirements.  Service of process was futher delayed in one county by the inability of the deputy sheriff to locate the defendant after repeated attempts.  Consequently, service on these two defendants did not occur within the statutorily required time period.  Between these two defendants, counsel for Plaintiffs requested seven summonses and the appointment of a special process server.  Plaintiffs obtained service of process on all eighteen defendants within five months, on March 24, 2008.  Motions to dismiss were filed by one defendant on August 8, 2008, and by three other defendants on September 9. 2008 for failure of Plaintiffs to obtain service of process within the statutory time frame of ninety days.

Held:

The Circuit Court of Saline County granted the motions to dismiss, finding that Plaintiffs did not show good cause for failure to obtain service of process within ninety days.

On Appeal:

Reversed and Remanded.  Where Plaintiffs demonstrate reasonable diligence in the process of serving all defendants in a will contest proceeding, and the location, in addition to the number, of defendants provides barriers to obtaining process of service, good cause exists for failure to obtain service within ninety days.

Rationale:

Service of process in a will contest case is governed by RSMo. §473.083.6, which provides:

“If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed at the cost of the petitioner.”

Three evidentiary guidelines exist for establishing “good cause”: 1) proof that demonstrates difficulties in obtaining service of process; 2) proof demonstrating circumstances which impede timely service of process or which prevent service of process in its entirety; and 3) proof that such impediments are attributable to persons and things beyond the control of the plaintiff.  These guidelines are met where plaintiffs attempt service via several summonses, including appointment of a special process server, and where plaintiffs are faced with multiple procedural hurdles and delays, which they attempted to remedy in a diligent manner.  The number of the defendants and their locations are particularly important in determining “good cause.”  When there are numerous non-resident defendants, there is a greater likelihood of delays caused by the mechanics of execution of personal service; thus, it is more likely for plaintiffs to have good cause in failing to serve all defendants within the statutory time frame.

Factual Background:

Grantor executed the Gene Wild Revocable Trust (“the Trust”) on July 10, 1990.  In 1991, 1996, 1997, and 1998, the Grantor executed the First through Fourth Amendments to the Trust.  In 2002, Grantor executed the “Restated Revocable Trust Agreement of Shirley Gene Wild” (“the Restated Trust”).  The Restated Trust referenced the original Trust as well as the four amendments.  The Restated Trust neither expressly revoked nor supplanted Grantor’s prior Trust.  The Restated Trust created a single charitable remainder annuity trust (“CRAT”) in favor of College of the Ozarks (“C of O”) and named Cottey College (“Cottey”) a contingent remainder beneficiary.

Grantor had surgeries on her knees and due to cervical cancer in 2003-2004, and, following the 2004 surgeries, went to live at a nursing home; multiple witnesses testified that after her surgery, she began to show signs of increasing forgetfulness and varying degrees of dementia.  Around the time she was admitted to the nursing home, Grantor contacted her brother and asked him to contact his attorney and told him that she wanted to make changes to the Trust.  In 2004, Grantor proceeded to execute the Fifth and Sixth Amendments to the Trust.  The Fifth Amendment provided two equal CRATs:  one to benefit Cottey and one to benefit C of O.  Grantor then passed away in 2005.

On February 1, 2006, Cottey filed a petition requesting declaratory relief and a determination as to whether the Fifth and Sixth Amendments were effective and enforceable, contending it was entitled to share equally in the residue of the Trust with C of O.  The following day C of O brought a declaratory judgment action against Cottey, which was treated as a counterclaim to the petition filed by Cottey.  On August 1, 2007, C of O filed for summary judgment on Counts I and III of its counterclaim.  Cottey then filed for partial summary judgment on Count I of C of O’s counterclaim.

Held:

The Circuit Court of Jasper County granted Cottey’s motion for partial summary judgment as to C of O’s Count I, determining that the Fifth Amendment operated as a valid amendment to the Restated Trust.  The Court then denied C of O’s motion for summary judgment as to Count I and took the motion against Count III under advisement.  The Court ordered the parties to proceed to trial on C of O’s Count II relating to Grantor’s mental capacity to create any amendments to the Trust and set out that if C of O was unsuccessful, then Count III was moot.  After trial, the Court determined that Grantor had the capacity to execute Amendments.  The Court also awarded attorneys’ fees to Cottey and C of O, to be paid from the Trust prior to distribution of the CRATs.

C of O appealed, arguing against the granting of Cottey’s motion for partial summary judgment on Count I, the judgment in favor of Cottey on Count II, and the denial of C of O’s summary judgment motion regarding Count III.  Cottey appealed, arguing against the award of attorneys’ fees to C of O and the award of attorneys’ fees out of the Cottey’s share of the Trust.

On Appeal:

Affirmed.  A restatement of a trust, which has no language revoking or supplanting the trust, can be treated as simply an amendment to the original trust when the grantor’s intent to amend is clear.

Where there is conflicting testimony as to a person’s capacity to amend a trust, the trial court has discretion to weigh the credibility of witnesses’ testimony, including expert witnesses.

In a judicial proceeding involving the administration of a trust, the court may award costs and expenses, including attorneys’ fees, to any party, and such fees can be paid from the trust that is the subject of the controversy.

Rationale:

The paramount rule of construction in determining the meaning of a trust provision is that the intent of the person who created the trust is controlling.  Where there are no provisions in a trust as to the exact manner of amendment, revocation, or alteration or a limit to the number of times the trust can be modified by the grantor, the grantor can alter or revoke the trust in any manner manifesting an intention to alter or revoke.  When a restatement of a trust has no language revoking the trust or supplanting it, and further amendments of the trust reference the original trust as the trust instrument and not the restatement, then it can be inferred that the grantor intended to amend the original trust with the restatement, not revoke it.

When conflicting testimony is presented as to whether a person had capacity to execute a trust document, it is for the trial court to decide the credibility of the witnesses and the weight to be given to their testimony.  In deciding the issue, the court is free to believe none, part or all of the testimony of any witnesses, including expert witnesses.  They are free to reject expert testimony if they do not find it credible.

Finally, Section 456.10-1004 of the MUTC provides that “in a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney’s fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.”  When a court determines that litigation was brought and defended in good faith, it is within the court’s discretion to award attorneys’ fees to any party, including the losing party.  The fees may be paid from the trust, and there is no rule as to whether the fees be paid out before or after distribution to beneficiaries.  Such specific determinations are within the court’s discretion, and thus a court can order attorneys’ fees to be paid out prior to distribution.

Factual Background:

In 1992, Decedent established a Trust to provide for his health, maintenance, comfort, and support.  Decedent’s Children are trustees of this Trust.  Decedent married Second Wife in 1998, with whom he entered into an antenuptial agreement before the marriage.  In 2004, the probate court established a conservatorship estate for Decedent because he was adjudged fully incapacitated and disabled.  A third party was appointed guardian and conservator.  After Decedent’s death, Children were appointed personal representatives of his estate.

Second Wife filed a three-count petition against Children in their capacities as trustees of the Trust and as personal representatives of the estate.  In the petition, Second Wife claimed that during Decedent’s life she was a beneficiary of the Trust and of two life insurance policies, one of which was owned by the Trust and the other by the estate.  She did not attach a copy of the Trust to the petition.  In Count I, she sought an accounting of Trust property from Children as trustees.  In Count II, she alleged that Children, as trustees, engaged in self-dealing and mismanagement of the Trust property by conserving the Trust assets instead of using them to provide for Decedent’s health, maintenance, comfort, and support and thereby caused the conservatorship’s assets to deplete in order to provide for Decedent.  Second Wife contended that the principal asset of the conservatorship was a life insurance policy, of which she was the beneficiary.  In Count III, she claimed that Children, as personal representatives and trustees, were unjustly enriched because they ultimately benefited from the Trust assets that should have been expended.

Factual Background:

When decedent died, her 2004 will was admitted to probate and her sister was appointed the personal representative of her estate.  Decedent’s niece then filed an application to probate the 2003 will, which was rejected by the circuit court.  Niece then filed a petition to contest the 2004 will and have the 2003 will admitted probate.  Sister then filed a motion to dismiss the niece’s petition for failure to join all necessary parties.  Sister asserted that the niece had failed to join two heirs of the decedent.

 St. Louis County Circuit Court, J. Seigel, Held:

The circuit court granted the sister’s motion to dismiss, finding the heirs were necessary parties.  The niece appealed.

Court of Appeals, J. Dowd, Jr., Held:

Reversed and remanded.  Section 473.083.3 states that “[i]t is not necessary to join as parties in a will contest persons who interests will not be affected adversely by the result thereof.”  The omitted heirs are not legatees under either will, and therefore they do not stand to lose some protected benefit if the will contest succeeds.  Thus, the omitted heirs would not be adversely affected by the result of the will contest and are not necessary parties.

Factual Background:

Pursuant to a will decedent executed two days before he died, his three daughters and his niece’s husband were named to share equally in the will.  The niece’s husband was appointed personal representative of the estate.  One of the daughters brought an action for discovery of assets against the personal representative, alleging that certain assets should belong to the estate, but were unlawfully obtained by the personal representative by fraud, undue influence, or decedent’s lack of capacity.  In part, she alleged that proceeds from two bank accounts owned by decedent were assets of the estate and had been adversely withheld by the personal representative.

Barry County Circuit Court, J. Woods, Held:

The circuit court found that the personal representative’s exercise of undue influence caused certain bank accounts to be created in the joint names of the decedent and the personal representative.  The court entered judgment in favor of the estate and against personal representative for $46,265.52.  The personal representative appealed.

Court of Appeals, P.J. Lynch, Held:

Affirmed.  The personal representative argues that the trial court’s decision was not supported by substantial evidence.  To prove that a court’s decision was not supported by substantial evidence requires completion of three steps: (1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment, (2) identify all of the favorable evidence in the record supporting the existence of that proposition, and (3) demonstrate why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force upon the proposition such that the trier of fact could not reasonably decide the existence of that proposition.  Instead of following these steps, the personal representative did the opposite:  he identified evidence favorable to his position and attempted to demonstrate why his evidence supports a judgment in his favor.  Because he did not fulfill the necessary steps, his point is denied.

Even assuming he did fulfill the steps, the court’s decision was supported by substantial evidence.  There was considerable evidence that decedent’s physical and mental condition deteriorated significantly in the last year of his life.  Evidence was presented that decedent was an alcoholic and that the personal representative knew he was an alcoholic; yet, the personal representative encouraged decedent’s drinking.  Also, there was evidence that decedent had represented that he wanted to leave his money to his daughters.  Taking this evidence into account, the court’s finding of undue influence was supported by substantial evidence.

RSMo § 473.444, which bars most creditors’ claims against an estate brought more than one year after a decedent’s death, does not implicate the 14th Amendment Due Process Clause because it is self-executing and does not require state action.

Factual Background:

Personal representative of testator’s estate, the testator’s daughter, filed a six-count petition for will construction, asking in one of the counts that the court determine the testator’s intent regarding who should pay the estate taxes.  Personal representative argued that because the testator’s will did not clearly express who should bear the burden of paying estate taxes, the doctrine of equitable apportionment should apply.  Testator’s grandchildren filed a motion for judgment on the pleadings as to the claim for equitable apportionment, arguing that the doctrine would not apply.

 Chariton County Circuit Court, J. Midyett, Held:

The circuit court granted the grandchildren’s motion for judgment on the pleadings and found that the testator’s intent was that the estate taxes were not to be equitably apportioned but were to be paid from the residuary estate.  Personal Representative appealed.

Court of Appeals, P.J. Welsh, Held:

Appeal dismissed.  Generally, orders from the probate division of the circuit court are interlocutory and not subject to appeal until final disposition of the matters before the court.  An order is only deemed final for purposes of appeal if it falls within the enumerated exceptions in section 472.160.1.  Personal Representative argues that the circuit court’s order falls within subsections (3) and (13) of section 472.160.1, which say that orders are appealable “(3) On all apportionments among creditors, legatees, or distributes;… (13) On all orders denying any of the foregoin requested actions.”  However, this action was a will construction case and not an apportionment case.  This is not a case where the court apportioned or refused to apportion property or shares as to make it an appealable order pursuant to 472.160.1(3) and (13).  Will construction matters are appealable in connection with appealable matters set forth in section 472.160, but this case has no appealable matter.  Therefore, the appellate court does not have jurisdiction to hear this appeal.