Probate and Trust Law

Editors:
Bhavik R. Patel, Esquire
Mara Lahnar, Esquire
Erin Kolb, Esquire

The right of election by a surviving spouse may be waived before or after marriage, but only after full disclosure of the extent of that right. In re:  The Estate of Charles Ray Cassidy, No. 30025 (Mo. App. S.D., November 16, 2011), Bates, J.

Personal representative appealed the judgment of the trial court, which determined that an antenuptial agreement between the deceased and his ex-wife was void and could not be enforced.  

Held:  Affirmed.
The appellate court concluded that the personal representative failed to prove that the antenuptial agreement complied with the requirements of full disclosure. The court found the following factors in support of the conclusion that the deceased failed to fully disclose the extent of his ex-wife’s right of election:  (1) the deceased had no substantive discussions with his ex-wife about the agreement; (2) the ex-wife had no previous experience with antenuptial agreements; (3) the deceased selected the attorney himself without any input from his wife; (4) the ex-wife provided no financial information for the agreement; (5) the deceased presented the agreement to his ex-wife six hours before the wedding; and (6) the deceased grossly understated his assets.


In order to establish a valid Medicaid reimbursement claim, the State is required to prove that any checks it issued to healthcare providers for the care of a patient were both presented and paid. In the Estate of Katherine L. Nelson, et al. v. Mo. Dept. of Social Services, et al. No. 73957 (Mo. App. W.D., March 20, 2012), Ahuja. J.

MO HealthNet Division appealed the circuit court’s judgment denying its claim against the estate of Katherine Nelson.

Held: Affirmed.
Section 473.398.4 requires that the State prove two necessary elements in order to establish a reimbursement claim:  (1) proof of what providers billed and (2) proof that payment was made. Here, the State failed to present any evidence that any checks issued were actually presented to the bank and cashed.


Where a trust provides a method for amending the trust, the settlor must substantially comply with such method in order for the amendment to be valid. Banks v. Central Trust and Investment Co., No. 96953 (Mo. App. E.D., March 20, 2012), Romines, J.

James P. Banks filed this appeal to have the court determine the validity of a purported amendment to his mother’s trust after Mr. Banks had previously signed a consent judgment which removed him and his mother as trustee, appointed Central Trust and Investment Co. as successor trustee, and warranted that no amendments of the trust existed.

Held:  Affirmed.
While the court agreed with Mr. Banks that judicial estoppel does not preclude his appeal so long as Mr. Banks is correct that he did not find the amendment until after he agreed to the consent judgment, the court found that the amendment was not valid. The trust itself provided, “The settlor may at any time or times amend or revoke this agreement…by instrument in writing…delivered to the successor trustees or trustee…”  Where the terms of the trust provide a method for amending the trust, the settlor must comply with such method in order to create a valid amendment. There was no evidence here that settlor ever delivered the amendment to Mr. Banks or any successor trustee.


(1) Where a person is acting as guardian or conservator pursuant to a facially valid court order, he or she is protected by qualified immunity against any claims arising under Section 1983; (2) in order to hold a private party, such as a doctor, liable for a Section 1983 claim, a plaintiff must demonstrate a conspiracy between the private actor and the government actors. France v. Hunter, et al., No. 31454 (Mo. App. S.D., April 6, 2012), Francis, Jr., J.

Emma France appeals the grant of summary judgment in favor of defendants Rita Hunter, Charlene Kelly and Stephen Bazzano on her claims against them for violating her constitutional rights pursuant to 42 U.S.C. Section 1983. Ms. France alleged that Ms. Hunter and Ms. Kelly improperly secured a guardianship and conservatorship over Ms. France by failing to comply with procedural law and therefore, violated her constitutional rights. She further alleged that Dr. Bazzano insufficiently examined her and acted in concert with Ms. Hunter and Ms. Kelly.

Held:  Affirmed.
The court found that Ms. Hunter and Ms. Kelly were acting pursuant to the Probate Division’s facially valid court order and thus were entitled to qualified immunity unless Ms. France could show they knowingly violated Ms. France’s rights. Ms. France failed to provide any such evidence. The court concluded that in order to establish liability for Dr. Bazzano, “Under Section 1983, a plaintiff must establish not only that a private actor caused a deprivation of constitutional rights, but that the private actor willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy.”  Ms. France failed to provide any such evidence.


The court may order partial distribution to one beneficiary even though the other beneficiaries will be forced to wait for the distribution of their shares. In the Estate of Beulah A. Sullivan, et al. v. Sullivan, No. 96674 (Mo. App. E.D., May 22, 2012), Clayton, III, J.

Personal representative filed appeal of probate court’s decision to grant partial distribution to one beneficiary of the estate. Personal representative argues that such partial distribution is prejudicial to the other remaining beneficiaries, because such other beneficiaries will not receive their share for an unknown amount of time.

Held:  Affirmed.
Pursuant to § 473.613.1, the court “may decree partial distribution if the court believes that other distributes and claimants are not prejudiced thereby.”  The court found that the size of the Estate here was such that the Estate would not be prejudiced by a partial distribution despite the fact that other beneficiaries would have to wait an unspecified time until other assets were liquidated to receive their distributions.


In order to invalidate a deed for undue influence, a party must set forth some evidence from which undue influence can be inferred other than the mere fact that a confidential relationship existed. Sleepy Hollow Ranch, LLC, et al. v. Robinson, et al., Nos. 30657, 30687, 30666, 30686 (Mo. App. S.D., April 17, 2012), Barney, J.

Appellants complain that the court improperly refused to invalidate a deed from the deceased to Ms. Robinson, who had been living with the decedent and taking care of his finances and home.

Held:  Affirmed.
The presumption of undue influence is raised upon a showing of the following:  (1) the existence of a confidential relationship; (2) a deed favoring the one acting in the fiduciary capacity; and (3) some evidence from which a court can infer undue influence. While Ms. Robinson and the decedent clearly had a confidential relationship given her assistance with his home and finances and the deed clearly benefited Ms. Robinson, Appellants provided no facts from which undue influence could be inferred. All the evidence presented demonstrated that the decedent was with capacity when he executed the deed. There was no indication that Ms. Robinson exercised influence in such a way as to deprive the decedent of his free agency.