Probate and Trust Law
Editors:Dawn T. Christoffersen, EsquireBhavik R. Patel, EsquireMara Ising
Appeal by Spicer from a judgment enforcing a settlement
agreement dismissed where the the trial court lacked jurisdiction to
grant the trustee's motion to vacate the initial judgment setting aside
the conveyance, because the initial judgment had become final. Spicer v. Donald N. Spicer Revocable Living Trust, et. al., No. 91117 (Mo. banc, March 29, 2011), Price, Jr., C.J.
Gwen and Donald Spicer owned certain property together. After
experiencing marital difficulties, Donald conveyed his one-half
interest in the property to his trust. Upon his death, Gwen Spicer
sought to set aside the conveyance based on the argument that they owned
the property together as tenants by the entirety. In her suit to set
aside the conveyance, Spicer named only the trust itself. The court
agreed with Spicer that the property was owned as a tenancy by the
entirety and set aside the conveyance. However, the trustee of the
trust, more than thirty days after the initial judgment, filed a motion
to vacate and the judge granted the trustee's motion. Eventually,
Spicer and the trustee of Donald's trust reached a settlement
agreement. However, Spicer refused to sign the agreement and appeals
the judgment of the court ordering her to do so.
Held: Appeal dismissed. The court lacked
jurisdiction to grant the trustee's motion to vacate the initial
judgment setting aside the conveyance. Pursuant to Rule 75.01,
judgment becomes final after 30 days unless a party files some
post-trial motion. Because the trustee of the trust was not a party
to the original suit, the fact the trustee filed the motion to vacate
the court's decision to set aside the conveyance was irrelevant to the
finality of the decision. At the time the court set aside the lower
court's decision in favor of Spicer, the court lacked jurisdiction to
do so since the initial judgment had become final. As such, the
settlement is invalid and the conveyance of the property to the trust
was set aside.
James H. Wild, College of the Ozarks, and Cottey College
appeal the trial court's judgment in favor of Katherine and Laura
Cunningham in a case seeking a declaration regarding how to distribute
the balance of an insurance trust. Judgment reversed where the trial
court incorrectly found that the Cunninghams were the only parties
entitled to a distribution. In the Matter of Gene Wild Insurance Trust and U.S. Bank v. James H. Wild, et al., Nos. 30449, SD30457, and SD30459 (Mo. App. S.D., February 22, 2011), Lynch, J.
Decedent created both a revocable trust and an insurance trust. The
revocable trust directed the trustee to make specific distributions
first and residual distributions to two charitable remainder annuity
trusts ("CRAT"). Each CRAT provided for James H. Wild to be the
lifetime beneficiary and two colleges to be the remainder
beneficiaries. Furthermore, the revocable trust gave the trustee
discretion to pay federal and estate taxes owed as a result of
decedent's death and assets received as a result thereof. Such
payments were to be charged to the residue prior to funding the CRATs.
Further, if such payment was made, it was "without reimbursement from
Grantor's Personal Representative, from any beneficiary of insurance
from Grantor's life or any other person."
The insurance trust included a provision title "Outright Gifts,"
stating, "[t]he Trustee shall distribute, outright and free of trust,
to each person who is determined under Missouri law to be ultimately
responsible for any federal estate tax, state estate or inheritance tax
or any other death tax as a result of Grantor's death, an amount equal
to such death taxes for which such person is determined by the Trustee
to be responsible." All other funds remaining were to be distributed
first to James H. Wild and then to Katherine and Laura Cunningham (the
Upon decedent's death, U.S. Bank filed suit to seek a declaration as
to how funds from the insurance trust should be distributed.
Respondents, the Cunninghams, and both colleges filed cross motions for
judgment on the pleadings. The court granted only the Cunninghams'
motion finding they were the only party entitled to a distribution for
Held: Reversed and Remanded. The trial court
misapplied the law when it found the Cunninghams to be the only parties
entitled to a distribution. The Cunninghams asserted two positions:
(1) that "reimbursement" as used in the revocable trust and "gift" as
used in the insurance trust are terms with the same meaning and (2)
that the revocable trust and insurance trust were inconsistent with one
The Cunninghams' first position fails to abide by the plain meaning
of the words used. The mere fact that the documents were created at
the same time but used different words demonstrates the decedent's
intent for the two words to have separate meanings. While the trustee
had no right to reimbursement from the insurance trust, he was still
entitled to receive a gift from the Insurance Trust.
The court also disagreed with the Cunninghams' second position that
the revocable trust was inconsistent with the insurance trust. "The
paramount rule in construing a trust is that the intent of the grantor
is supreme." Where the trust includes clear and unambiguous language
as to the grantor's intent, the court should give effect thereto.
Grantor's language in the insurance trust here clearly and
unambiguously expressed intent to provide an outright gift to each
person determined under Missouri law to be responsible for any federal
or state estate or inheritance tax. Nothing in the revocable trust was
inconsistent with grantor's intent in executing the insurance trust.
Consequently, the court should have given effect to grantor's intent
and ordered distribution to all parties responsible for federal or
state taxes, including the Cunninghams. As such, the court reversed and
remanded the case to the trial court for further determination.
Appeal by Reed from a decision of the probate court
determining that Reed was unfit to care for K.J.R.H. and appointing
grandfather as guardian. The presumption that the natural parent is
the appropriate custodian for a minor child may be overcome by evidence
that the parent is unfit to care for the child. In Re The Matter of K.J.R.H. v. Reed, No. 30309 (Mo. App. S.D., January 19, 2011), Rahmeyer, P.J.
Reed was previously in a relationship with decedent and allegedly
conceived K.J.R.H., although paternity was never established. In
granting decedent's father guardianship over K.J.R.H. over Reed, the
court found that Reed abused alcohol and drugs, experienced anger
issues, admitted to not being a father to K.J.R.H., and failed to
provide any care for the child.
Held: Affirmed. Reed's lack of planning, anger
management, inability to provide as a father, and substance abuse
constitutes sufficient evidence to support a finding that Reed is unfit
as a parent. "Although there is a rebuttable presumption that a
natural parent is the appropriate custodian for a minor child, it may be
overcome by evidence that the parent is unfit, unable, or unwilling to
take care of the child."
Appeal by United Asset Management Trust Co. ("United
Asset"), as trustee of The Coast to Coast Holding Trust (the "Trust"),
from a judgment holding that a piece of property formerly held by the
Trust was properly transferred to the Clarks by tax sale. Judgment
affirmed where the Collector and the Clarks provided notice reasonably
practical under the circumstances.United Asset Management Trust Co. v. Clark, No. 71589 (Mo. App. W.D., November 30, 2010), Ellis, P.J.
The trust failed to pay taxes owing on property belonging to the
trust. Although the county tax collector attempted to notify the
trust, through both mail and publication, of its intent to sell the
property via tax sale, the trust never received notice and the property
was sold to the Clarks. The Clarks thereafter attempted to notify the
trust of their purchase of the property via tax sale and intent to
request a collector's deed. Again, the trust never received notice
until after the deed was issued. Once the trust received notice of the
sale, United Asset filed a petition to set aside the tax sale. United
Asset claimed the tax collector's notice was insufficient for the
following reasons: (1) the notices of sale were returned as
undeliverable; (2) the notice of sale was published for only one week,
and (3) there was never a notice of sale posted on the property
itself. United Asset additionally asserted the Clarks' notice was
insufficient for the following reasons: (1) the notice was returned as
undeliverable and (2) the Clarks took no additional steps to notify the
trust. The court disagreed and quieted title to the Clarks.
Held: Affirmed. While parties whose rights would be affected
by a tax sale are entitled to reasonable notice, notice is required
only when "it is practicable to do so." "Due process does not require
that a property owner receive actual notice before the government may
take his property." Rather, due process requires only that notice
reasonably practicable under the circumstances of the case. Because the
tax collector and the Clarks had no known address to send the notices
upon receiving knowledge that the notices were undeliverable, neither
party was required to take additional steps. Additional steps would
have been futile given the following facts: United Asset failed to (1)
register to do business in Missouri; (2) file a document establishing
Mr. Tracy as the trust manager; (3) file a change of address with the
county; (4) own personal property; and (5) list itself with directory
assistance or in the white or yellow pages. As such, notice was
sufficient and the court properly quieted title to the Clarks.
The Missouri Bar Courts Bulletin, 11-May