Brother sued sister alleging she breached her fiduciary duty under power of attorney for mother by naming herself as transfer-on-death (TOD) beneficiary of mother’s assets.
On competing motions for summary judgment, the Circuit Court, St. Louis County, Colleen Dolan, J., entered judgment for brother, awarding him half of assets of mother’s estate, but denied his motion for attorney fees. Sister appealed.
The Court of Appeals, Cohen, J., held that: (1) naming herself as beneficiary of mother’s assets was a breach of sister’s fiduciary duty, and (2) brother was not entitled to attorney fee award in absence of bad faith showing. Affirmed. Attorney-in-fact’s designation of herself as the transfer-on-death (TOD) beneficiary of her mother’s assets was a breach of fiduciary duty, given that durable power of attorney designating daughter as attorney-in-fact did not specifically authorize daughter to name herself as a beneficiary to receive her mother’s property after death. V.A.M.S. § 404.710(6).
The court held that the brother failed to prove that his sister, acting as their mother’s attorney-in-fact pursuant to a durable power of attorney, acted in bad faith in naming herself as the transfer-on-death (TOD) beneficiary of mother’s assets. This bad-faith showing was required for an award of reasonable attorney fees to the brother who prevailed on a claim for one-half of assets of mother, who died intestate. V.A.M.S. § 404.717(5).