October 2024-Notice required to remove conservator
Statutes required notice to a conservator before replacing any conservator. On a petition of a minor ward’s conservator for approval of certain expenses consented by minor, no pleading, notice, or mention at hearing raised the replacement of the conservator. Nevertheless, the circuit court sua sponte replaced conservator with the public administrator. “Given this lack of notice and opportunity to respond at a hearing to the removal question, the circuit court cannot be said to have complied with the statutorily-mandated due-process procedure for removing [the] conservator.” The statute authorizing the appointment of a guardian ad litem did not apply. The Court of Appeals affirmed the judgment except as to replacement of the conservator, as to which the Court of Appeals reversed the judgment and remanded the action to the circuit court for reinstatement of the conservator.
Missouri Court of Appeals, Eastern District - ED112400
September 2024-Appointment of successor guardian and conservator denied
In an action to appoint a guardian or conservator, the statutes set forth a preference for family members, but that preference does not apply to a successor. Statutes allow a ward or protectee to file a motion for change of guardian or conservator but not to personally select a successor as a matter of right. Because the movants did not allege or prove that the original guardian and conservator — the public administrator — had lapsed in any duty, the circuit court did not err in denying the appointment of a successor, and substantial evidence supported that ruling.
Missouri Court of Appeals-Western District - WD86231
September 2024-Standing to contest will shown
Courts did not exercise their authority unless the party starting the action had standing to do so as shown by the petition and undisputed facts. The use of undisputed facts suggested summary judgment as a method for disposition. In defending against the petition by motion for summary judgment, the personal representative failed to support a critical allegation with admissible evidence and so could not prevail. Besides, dismissal, not a ruling on the merits like summary judgment, was the remedy for an action brought without standing. Standing to bring a will contest was subject to a statute that granted standing to any person who would “either gain or lose under the contested will[.]” Alternatives to the contested will included a revoked trust. The trust included all the decedent’s property as of the creation of the trust. After the creation of the trust, more assets came into the decedent’s estate. But those assets were not in the trust because the trust did not include property acquired after the creation of the trust, an earlier will pouring over assets into the trust was never timely offered for probate, and no mechanism existed to transfer any property into the trust if acquired after the creation of the trust. Therefore, if the plaintiffs were successful in their will contest, intestate succession would pass the assets to the plaintiffs. The plaintiff therefore stood to lose from the contested will and thus had standing to contest the will. Judgment for defendant personal representative vacated and remanded.
Missouri Court of Appeals-Southern District - SD37525
August 2024-Motion to substitute personal representative denied
Statutes required administration of any decedent’s estate in the county of decedent’s permanent residence, which was shown by decedent’s “actual personal presence” and an “intention to remain” indefinitely. Evidence supporting the circuit court’s determination, that decedent changed his permanent residence from Hickory County to Polk County, included: decedent’s departure from a Hickory County residence to a Polk County residence, living in the Polk County residence ever after, never expressing any intent to return to the Hickory County residence, changing his address to the Hickory County residence, and appellant spouse’s ex parte order of protection barring him from the Hickory County residence. Statutes gave decedent’s spouse a preference, but only if otherwise qualified, and allowed any interested person to apply when spouse had not applied within 20 days. Appellant showed no prejudice from a delay in setting a hearing. The Court of Appeals affirmed the circuit court’s denial of appellant’s motion to substitute herself as personal representative.
Missouri Court of Appeals-Southern District - SD38239
August 2024-Damages awarded against attorney-in-fact
A durable power of attorney’s authority to make gifts on the principal’s behalf did not apply when the principal had no donative intent. Self-gifts required express authority. Statute governing actions against an attorney-in-fact providing standing to successors in interest, defined to “include” certain persons. That language was not exclusive and expressed enlargement rather than limitation. An attorney-in-fact’s fiduciary duties include protecting the principal’s estate plan as shown by a will even if not probated. The circuit court imposed a constructive trust but failed to specify the trust’s res, which was error, but required no remand because the Missouri Court of Appeals entered judgment ordering appellant to pay specified money damages “cash” to respondents. Remanded to determine an award of attorney fees.
Missouri Court of Appeals-Eastern District - ED111275
July 2024-Means for waiver of jury trial were limited and exclusive
The plaintiff filed a motion for partial summary judgment, defendant did not raise an issue of authority, the circuit court granted the motion in an interlocutory order, later made final as a judgment, and the defendant raised the issue of circuit court authority in a motion for new trial, preserving error. Statutes gave the probate division of the circuit court exclusive authority over property belonging to decedent, but the disputed property belonged to decedent and plaintiff jointly with rights of survivorship, so the disputed property was not subject to probate division authority. Replevin determines the right to possession, not ultimate ownership, of property as between the plaintiff and defendant; so no third party was necessary or indispensable. Constitutional provisions protected defendant’s right to a jury trial on damages, which the defendant could waive only as provided by statute and rule, so no other mechanism — even the circuit court’s inherent powers — could deprive defendant of a jury trial. Therefore, to make an interlocutory order into a final judgment as a sanction for defendant’s failure to appear at a pre-trial conference was an abuse of discretion. The Missouri Court of Appeals reversed and remanded the judgment for a jury trial on actual and punitive damages.
Missouri Court of Appeals-Eastern District - ED111696
May 2024-Settlor's Intent of Trust
Construction of a trust seeks to give effect to the settlor’s intent as discerned from the trust instrument’s four corners including legal terms of art. Settlor directed designated a contingent beneficiary, the contingency being that a son of settlor predeceased settlor without issue. The trust also directed a sale of and distribution from trust property starting on that son’s 65th birthday and continuing over a reasonable time, but that sale was not an additional contingency, so whether a reasonable time had passed was irrelevant. Circuit court’s interlocutory judgment, ruling that appellant was not a contingent beneficiary to a trust, disposed of all claims as to that party and so was properly certified for appeal. The Missouri Court of Appeals reversed that judgment and entered judgment for appellant.
Missouri Court of Appeals-Western District - WD86359
April 2024-IRA was non-probate property
Stipulating to the admissibility of an exhibit waived objection to the exhibit’s entry into the record and consideration by the circuit court. Decedent’s individual retirement account listed a contingent beneficiary and a primary beneficiary. The primary beneficiary agreed to transfer all “right, title and interest” in the account to decedent but decedent never altered the beneficiary designations. The beneficiary designations were deemed altered by statute, except those designated as unaltered by dissolution of marriage, which was the context of the transfer. The transfer was merely a disclaimer of the account as marital property and post-dissolution events showed that the decedent intended the primary beneficiary to have it on death. The circuit court’s award of the account to the primary beneficiary had support in the evidence and was not against the weight of the evidence.
Missouri Court of Appeals-Western District - WD86056
April 2024-Date of death determined heirs
Decedent’s heirs were determined as of the date of decedent’s death and not as of the date on which someone filed an application to determine heirship. Decedent’s sole heir when decedent died was a biological daughter. The biological daughter’s later adoption into adoptive family did not alter that result because statutes provided that adoption was effective prospectively only. The biological daughter’s delay in seeking to determine heirship did not alter that result, either, because statutes expressly allowed a determination of heirship after the time for administering an estate had passed and a five-year statute of limitations did not apply. Whether title to disputed property had changed by adverse possession or otherwise was not at issue in circuit court so it is not before the Missouri Court of Appeals.
Missouri Court of Appeals-Eastern District - ED111925
April 2024-Discovery of assets inapplicable to non-probate assets
Plaintiffs sought a ruling on assets of decedent and the circuit court dismissed the action for lack of personal jurisdiction over the personal representative of decedent’s estate. But decedent’s estate was not at issue, only non-probate assets already bearing a beneficiary designation, so the statutes governing probate procedure, including discovery of assets, did not apply. Judgment of dismissal reversed and remanded.
Missouri Court of Appeals-Eastern District - ED111819
January 2024-No attorney fees from estate for beneficiary
In an action to contest a will, “the ultimate object—the real object—is to determine the rights of the parties to the property.” Equity allows an award of attorney fees to a litigant whose litigation protects the estate but not to a litigant whose litigation protects the litigant’s own interest. Therefore, the circuit court lacked authority to award attorney fees, and the Court of Appeals reverses the judgment as to that award.
Missouri Court of Appeals, Eastern District - ED111494
December 2023-Appellant’s briefing deficiencies preclude review
Failure to comply with rules governing the statement of facts, points relied on, and argument make it impossible for an appellate court to “competently rule on the merits of [the Appellants’] argument without first reconstructing the facts . . . and then refining and supplementing [their] points and legal argument.’” Appeal dismissed.
Missouri Court of Appeals, Western District - WD86118
December 2023-Judgment affirmed in battle of co-trustees
Missouri Uniform Trust Code allows the removal of a trustee for incapacity or misconduct but only when those facts show jeopardy to the trust. Appellants challenged the finding that no breach of fiduciary duty occurred as against the weight of the evidence, and the order to make respondent sole trustee as lacking support in substantial evidence, but failed in both because appellants did not address the evidence favoring those rulings. Citations to the record without applying any law preserve no argument. Statutes allow an award of litigation expenses without regard to which party prevails. Remanded to determine litigation expenses on appeal.
Missouri Court of Appeals, Western District - WD85899 & WD85916
September 2023-Beneficiary deed prevails
Decedent, through attorney in fact, contracted to sell decedent’s house, but that house was already the subject of a beneficiary deed to respondent. Respondent received the house on decedent’s death by operation of law under the beneficiary deed. A beneficiary deed terminates upon a transfer inter vivos, but the transfer was incomplete when decedent died, so the beneficiary deed remains effective. Statute, governing the performance of executory contracts through decedent’s personal representative, does not change that result. “Life inherently exists with vagaries, and the law can be used, ideally, to mitigate such uncertainty [; f]ailing to take such proactive action, however, the matter was left to chance and Appellant ultimately lost.”
Missouri Court of Appeals, Southern District - SD37889
September 2023-Self-dealing unauthorized under durable power of attorney
Statutes provide that a power of attorney creates a principal/agent relationship with fiduciary duties and bars the attorney-in-fact from making any transfer without express written authorization in the power of attorney. Power of attorney generally authorized respondents to make gifts to principal’s family, which included respondents, but also specifically barred respondents from making transfers to themselves. Spoken authorization, good faith, and substantial compliance are not defenses. Those transfers are void and did not pass title, so the transferred property belongs to the estate of decedent principal. Equitable remedies include reformation of a deed and, unlike law, equity may grant any relief supported by facts either pleaded or tried by consent, even when not prayed for. Trial by consent occurs implicitly on the introduction of evidence relevant to no pleaded issue and appellants’ objection negated consent. Also, the elements of reformation include mutual mistake, and the quantum of proof required is clear, cogent, and convincing evidence; but respondents had evidence only of respondent’s intent, not decedent principle’s intent, and so could not carry the burden of proof.
ESTATE OF NANCY MCKEAN, DECEASED BY AND THROUGH PERSONAL REPRESENTATIVE CHRISTI EGLOFF, Appellant v. GLORIA D. BAKER, KENNETH BAKER, and JUSTIN BLAKE, Respondents
Missouri Court of Appeals, Southern District - SD37650 and SD37651
August 2023-No record, no appeal
In an action for guardianship and conservatorship, the circuit court’s judgment relied in part on an earlier emergency hearing, but the transcript from that emergency hearing is absent from the record on appeal. “Here, it is apparent no record of the first hearing exists to file with this Court.” Reversed and remanded to make a record.
In the Matter of: Timothy Lee Isreal, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111010
JULY 2023-Conservator liable
Statutes and common law impose a fiduciary duty on conservator, require conservator to preserve protectee’s property for protectee’s benefit, and bar commingling. Circuit court’s blanket ratification of conservator’s transactions erroneously declared or applied the law. “The probate court’s dispensation of the annual settlement requirement in April 2000 was not also a dispensation of the final settlement requirement. Those are two separate requirements mandated by two separate statutes.” Respondent conservator appropriated protectee’s savings and deposited income from protectee’s real property and social security in accounts owned by conservator and conservator’s spouse. Conservator and conservator's spouse had a duty to provide basic ordinary support for protectee but diverted protectee’s social security survivor benefit for that purpose. That conduct constituted a breach of fiduciary duty. Conservator’s poor record-keeping does not excuse her from liability, it just lowers the bar for protectee to prove damages. Whether the conservator still has the money or has already spent it is irrelevant. Reversed and remanded to determine amounts due protectee.
Andrea E. Stockman vs. Brian G. Schmidt
(Overview Summary)
Missouri Court of Appeals, Western District - WD85691 and WD85694
MAY 2023-Claim for reformation of trust was timely
The Missouri Uniform Trust Code limits the time to file an action regarding a trust: ten years generally, and two years for contesting validity specifically. The latter did not apply to an action for reformation, because reformation challenges only provisions drafted under mistake of fact or law, and does not contest the validity of the trust. When a statute of limitations applies, laches will not apply, absent “special facts demanding extraordinary relief.” Appellant did not show that there was any prejudicial delay by respondent. Missouri Court of Appeals, Southern District - SD37567
MARCH 2023-Trustee cleared
Statutes provide the grounds for removing a trustee, but the grounds must be evident, and the ruling is subject to review for abuse of discretion. Substantial evidence supported the circuit court’s findings, that the trustee faithfully executed the provisions of the trust. But according to the trust’s provisions, no such finding is necessary to fill a vacant co-trustee position, so the Court of Appeals remands the case for appointment of a co-trustee. Motion for attorney fees denied. Missouri Court of Appeals, Western District - WD84894
JANUARY 2023-No Interlocutory Appeal from Denial of Summary Judgment
Probate code allows an appeal from any ruling that fully adjudicates and disposes of a specified petition, immediately rather than ten days later, even without denomination as a judgment. A notice of appeal divests the circuit court of authority over that matter. On a petition under the safe harbor provision to determine whether a no-contest clause applies, circuit court denied petitioner’s motion for summary judgment, but that ruling does not determine the petition. Whether the no-contest clause applies “remains pending and undetermined.” Therefore, the ruling is not subject to appellate review and the Court of Appeals dismisses the appeal.
Missouri Court of Appeals, Southern District - SD37345
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