In the Estate of Bell v. Bell,292 S.W.3d 920 (Mo. App. W.D. 2009)

Factual Background:

Florence Bell died on December 24, 2004.  Ms. Bell’s will devised her entire estate to Randy Bell and Dennis Bell to hold in trust for the benefit of Justin Bell.  On March 7, 2007 Justin Bell filed his third amended petition for discovery of assets in which he sought to recapture the Estate’s assets that were conveyed by the trustees to various third parties.  On April 16, 2008, the Estate’s personal representative filed a motion to review and determine whether a proposed compromise settlement of the discovery of assets proceedings should be approved and requested an evidentiary hearing regarding the settlement offer.  The hearing took place the following day, April 17, 2008.  During the hearing, the personal representative stated that he believed the defendants’ settlement offer of $325,000 was reasonable.  Justin Bell’s attorney objected to the personal representative’s unsworn commentary on the basis that his opinions constituted argument of counsel, not evidence.  The trial court stated that the personal representative did not need to be sworn in because, as an attorney, he was an officer of the court.  After the personal representative’s commentary, the court asked if he could verify he was telling the truth, and he stated he was.  No other evidence was submitted at the hearing.


The Circuit Court of Bates County approved the estate’s compromise settlement of $325,000.  Justin Bell appealed.

On Appeal:

Reversed and Remanded.  When an attorney is serving in the capacity of a testifying witness, he must be sworn in with an oath as a witness and be subject to cross-examination.  An unsworn statement by a personal representative is not evidence, and where such a statement is the only basis for a trial court’s judgment, that judgment is not based upon substantial evidence.


The standard for determining whether the trial court may approve a compromise settlement is whether the settlement is in the best interest of the estate and is fair and reasonable.  A trial court’s determination must be based on substantial evidence.  To constitute testimonial evidence, a witness’s statements must be “sworn testimony.”  For statements to qualify as “sworn testimony,” a witness must be sworn in before he gives any testimony, and the oath taken must be sufficient to show a quickening of the conscience.  Taking an oath after making statements does not qualify those statements as “sworn testimony.”  Likewise, a simple statement that one will tell the truth is, by itself, insufficient to show a quickening of the conscience.  Additionally, just because the witness testifying is an attorney, or “officer of the court,” does not afford him special privileges when he actively participates as a testimonial witness.  A witness attorney’s statements must still meet the “sworn testimony” requirements to constitute testimonial evidence.  Thus, where statements amount to unsworn testimony, they cannot comprise a proper basis for a trial court’s decision because they are not evidence.

Heidbreder, et al. v. Tambke, 284 S.W.3d 740 (Mo. App. W.D. 2009)

Factual Background:

In 1997, the decedent loaned his friend James Tambke $8,000.  Decedent died later that year.  No estate was opened, and no will was offered for probate within one year of his death.  Tambke made two partial payments to decedent’s heirs after the first year, $1,100 in 2002 and $1,000 in 2004.  In 2007, the heirs applied to the probate division of the Cole County Circuit Court for a judicial determination pursuant to RSMo. §473.663 that they were the decedent’s sole heirs at law and therefore the owners of the balance receivable for the loan to Tambke.  The probate division granted their petition and determined the extent of their respective interests in the loan.  Decedent’s heirs then demanded payment of the balance of the debt from Tambke.  When Tambke did not pay the balance, the heirs filed a petition seeking judgment against Tambke for the unpaid $5,900.  They alleged that he owed them the money pursuant to the determination of heirship.  Tambke filed a motion to dismiss on the basis that the decedent’s heirs do not have standing to bring the action because only a personal representative of the estate would have authority to do so and that the action is barred by the statute of limitations.


The Circuit Court of Cole County issued a judgment sustaining the motion to dismiss but did not state the reason for dismissal.

On Appeal:

Reversed and remanded.  A decedent’s judicially determined heirs have standing to bring an action to recover debts owed to the decedent, and partial payments of a debt to the heirs tolls the statute of limitations.


RSMo. §473.663.1 provides that “any person claiming an interest in [a decedent’s] property as heir or through an heir may file a petition . . . to determine the heirs of the decedent at the date of the decedent’s death and their respective interests or interests as heirs in the estate” if no administration was commenced on the decedent’s estate and no will was presented for probate within a year of death.  The statute was designed for instances in which there has been no estate administration, which means it operates to allow the resolution of pending property matters where there are heirs and there was no administration.  Though the statute refers to “property” without any distinction as to types of property, in view of its apparent purpose as a “mop up” provision, the word “property” should not be narrowly construed to exclude intangibles, such as choses of action.  If a person has been declared to have an ownership interest in a chose of action as an heir of the decedent, pursuant to RSMo. §473.663, then that declared owner should be entitled to pursue and recover it.

RSMo. §516.120.1 provides that the statute of limitations for actions upon obligations is five years.  However, generally, partial payment on a debt tolls the statute of limitations.  Even if such payments owed to a decedent are made to his heirs before they are judicially declared to be legal heirs, the payments still toll the statute.  Assumedly, the debtor makes payments to the persons to whom he understands payment is due and that he makes such payments as an implied promise to pay the balance.  The fact that the payments are made to the heirs before judicial determination of heirship and that the petition to recover the balance is brought after determination of heirship is of no consequence.  The decedent’s property interest devolves to the heirs at the time of death, even though the interest is not cognizable for litigation purposes until the determination of heirship.

Unnerstall v. Berkemeyer, 298 S.W.3d 513 (Mo. 2009)

Factual Background: 

Decedent established a trust and purportedly executed a will during his life. Exactly one year after his death, his widow, Petitioner Luanne S. Unnerstall, filed a petition in the probate division of the Franklin County circuit court to administer his estate.  Later, the purported will was presented to the probate division.  Petitioner asserted that her husband’s assets should be subject to probate as though he died without a will because the will was not presented within one year as required by law.


The Circuit Court of Franklin County admitted the purported will to probate and granted letters testamentary to Gary Unnerstall, the decedent’s nephew, whom the will names as executor.  Mrs. Unnerstall petitioned the Supreme Court of Missouri for a writ of mandamus requiring the respondent judge to vacate the order admitting the will to probate and to enter an order declaring that the decedent died intestate.

Supreme Court, Wolff, J., Held:

Permanent writ issued.  RSMo section 473.050 prevents a will from being presented more than one year after the death of a decedent if notice of letters has not been published already, and thus, a judge should not admit such a will to probate or issue letters testamentary in accordance with said will.


Prior to the enactment of the current time limits in section 473.050, it was settled law that no will could be admitted and no administration of the will could occur unless application was made to do so within one year of the decedent’s death.  With the enactment of sections 473.050.3 and 473.050.4, however, the legislature changed this rule.  Section 473.050.4 now states that as long as a will is admitted within subsection 3’s time limits, the will “may be exhibited to be received and administration granted on such will at any time after presentment.”  This change only extended the time for administration of a will, not presentment.

If the legislature had intended to eliminate the limitation whenever notice of letters issued, no matter how much time had passed since the testator’s death, it would have been clearer.  Keeping the one-year language of section 473.050.3(2) indicates legislative intent to keep a one-year limitation on the presentment of a will.

Denton v. Missouri Department of Health, 318 S.W.3d 274 (Mo. App. W.D. 2010)

Factual Background:

Decedent died on August 26, 2008.  Respondent Denton was appointed as personal representative of his estate.  On May 29, 2009, the Department filed a claim against the estate.  Ms. Denton then filed an objection to the claim on June 23, 2009.  The Department filed its opposition to the objection on July 1, 2009.  On July 7, 2009, the circuit court denied the claim on the basis that it was time-barred.  On July 14, 2009, the Department filed a Motion to Set Aside Denial.

Cole County Circuit Court, J. Beetem, Held:

The circuit court denied the Motion to Set Aside Denial on July 21, 2009.  The Department then filed its Notice of Appeal on July 31, 2009.

Court of Appeals, J. Ahuja, Held:

Appeal dismissed.  The circuit court’s July 7, 2009 order was immediately appealable under section 472.160.1 since it related to the allowance of any claim exceeding one hundred dollars.  Section 472.180 provides that all appeals shall be taken within the time prescribed the rules of civil procedure.  Rule 81.04(a) provides that a notice of appeal must be filed no later than 10 days after the judgment becomes final.  Rule 81.05(a)(1) declares that judgments do not become final until thirty days after their entry, but the court has held that Rule 81.05 does not apply to interlocutory probate orders appealable under 472.160.1(1)-(13).  Thus, in order to have properly appealed the denial of its claim, the Department was required to file a Notice of Appeal within ten days of that denial.  Here, the claim was denied on July 7, but its Notice of Appeal was not filed until July 31, more than ten days later, so the Department accordingly waived its right to an immediate interlocutory appeal of the trial court’s ruling.  Although the Department failed to take advantage of its right to an interlocutory appeal, it may still appeal the matter following final settlement or disposition of the proceeding.

Peters v. Peters, 323 S.W.3d 49 (Mo. App. E.D. 2010)

Factual Background:

Gilbert and Marcella Peters established a revocable living trust in 1991.  Marcella died in 1995.  Gilbert then transferred property out of the trust and amended the trust three times.  In 2008, Gilbert was found to be incapacitated and disabled, and his son Gilbert Jr. was appointed conservator of the Trust.  Gilbert’s other son, David, filed a petition seeking a declaratory judgment that, among other things, the Trust became irrevocable upon the death of Marcella and that David was a qualified beneficiary of the Trust and thus entitled to an accounting.  Gilbert Jr. then filed a motion for partial summary judgment on these counts.

St. Charles County Circuit Court, J. Cunningham, Held:

The circuit court granted Gilbert Jr’s motion for summary judgment.  David appealed.

Court of Appeals, J. Baker, Held:

Affirmed in part, and reversed in part.  A beneficiary who has a future contingent interest in trust property has standing to bring a cause of action for an accounting against the trustee.  When a settler is adjudicated totally incapacitated and disabled, the duties of the trustee are no longer owed exclusively to the settler but also to the beneficiaries of the trust.  Additionally, a beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or present or redress a breach of trust.  As a beneficiary, David is entitled to an accounting of the Trust.

The paramount rule of construction in determining the meaning of a trust provision is that the grantor’s intent is controlling.  The Trust unambiguously states that Marcella and Gilbert intended for the trust to be revocable as long as one of them was still alive.  Thus, the Trust did not become irrevocable upon the death of Marcella.

Johnson v. Estate of Wesley H. McFarlin, 334 S.W.3d 469 (Mo. App. S.D. 2010)

Factual Background:

Johnson and decedent were romantically involved and lived together from 1993 to 2007.  Johnson deposited a portion of her paycheck into decedent’s bank account every month, and her living expenses were paid out of that bank account.  During their cohabitation, decedent bought Johnson multiple vehicles, bought a rental property, and built a new house for them to live in.  Johnson’s name was not added to the house or the rental property.  Her name was added to the bank accounts and the vehicles.

At the time of decedent’s death, Johnson and decedent were the joint owners of a $30,000 certificate of deposit, a $3,300 bank account, and a 2007 Envoy.  Johnson also owned her own $30,000 certificate of deposit, and she kept decedent’s tax return and furniture from the residence.  An estate was opened, and the only property in the estate was the residence (valued at $133,500) and the rental property (valued at $75,000).

Johnson filed suit against the Personal Representative, asserting a claim of unjust enrichment against the Estate.  With respect to the residence, Johnson alleged that she made financial contributions to the cost of construction and provided labor in the completion of the home.  Johnson also alleged that she had made financial contributions to the acquisition of the Rental Property.  She asked to be awarded one-half of the values of these properties, plus attorney’s fees.

Douglas County Circuit Court, J. Moody, Held:

The circuit court entered judgment against Johnson, denying her unjust enrichment claim against decedent’s estate.  The court found that Johnson had failed to meet her burden of proving that she had contributed funds used to buy either property.  Instead, the evidence showed that decedent’s funds were used for the purchases.  Johnson appealed.

Court of Appeals, J. Bates, Held:

Affirmed.  The trial court made a specific factual finding that decedent’s funds, rather than Johnson’s funds, were used to purchase the two properties.  Considering the facts, this finding was not against the weight of the evidence.  In an unjust enrichment claim, the plaintiff has to prove that she conferred a benefit on the defendant, and plaintiff did not meet her burden of showing she contributed to these properties.  Further, Missouri law does not permit recovery on an unjust enrichment theory if the parties receive what they intended to obtain.  The record showed that Johnson willingly deposited her earnings into the bank account in exchange for all of her living expenses being paid.  Johnson received at least as much from decedent as she contributed to him.

Pence v. Haddock, 327 S.W.3d 570 (Mo. App. S.D. 2010)

Factual Background:

In 1988, husband and wife signed a will, which included a provision not to revoke the will unless both parties agreed.  Husband and wife were divorced in 2008.  Husband died in 2009, and wife filed an Application for Probate of Will and Application for Letters Testamentary.  Husband’s daughter filed a motion to dismiss, asserting that wife had no standing in the estate, and she filed an Application for Letters.

Jasper County Circuit Court, J. Mouton, Held: 

The circuit court determined that a contract to make a will and not revoke the will had been established in accordance with 474.155, but there was no agreement as to potential divorce between the parties.  The court ordered that all provisions in the will concerning wife, including her right to serve as personal representative, were revoked by operation of 474.420.  The court appointed husband’s daughter as personal representative and denied wife’s application for letters testamentary, and wife appealed.

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

Affirmed.  Wife is arguing that section 474.155 allows her to circumvent section 474.420 in this case, but there is no support for this contention.  Section 474.420 clearly provides that “if after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse are thereby revoked.”  The legislature was aware of section 474.420 when it enacted 474.155, and if the legislature had intended to exclude the application of 474.420 when applying 474.155, it easily could have added such an exception.  It did not.  Unless two statutes are irreconcilably inconsistent, both must stand.  Sections 474.420 and 474.155 are not in conflict; therefore, the court must enforce the law as it is written.  Additionally, the law favors a statutory interpretation that tends to avoid unreasonable results.  If wife was allowed to retain the property awarded to her in the divorce and also allowed to receive husband’s estate, this would result in an inequitable windfall in favor of wife because she has already received her share of the marital property in the divorce.

Title Partners Agency, LLC v. Devisees of the Last Will and Testament of M. Sharon Dorsey and Patrick T. Dorsey, 334 S.W.3d 584 (Mo. App. E.D. 2011)

Factual Background:

Defendant was Personal Representative of the Estate of his mother, and among the assets of the Estate was a parcel of real property.  Broker entered into a contract with the Estate to purchase the property.  The contract gave Broker the option to purchase title insurance, and it required the seller to report any title defects within twenty-five days.  Broker entered into an agreement with Plaintiff to provide title insurance.  There was an outstanding second deed of trust on the property, on which Defendant had made several payments on behalf of the Estate.  Plaintiff’s title examiner conducted a title search but did not find the second deed of trust.  On the day of closing, Defendant executed an affidavit attesting that there were no loans or mortgages on the property.  Based on the representations in the affidavit, Plaintiff disbursed the purchase money to the Estate and did not withhold an amount to pay off the second deed of trust.

When Plaintiff was notified of the second deed of trust, it had to pay the Mortgage Company the outstanding balance to satisfy the debt owed.  Thereafter, Plaintiff filed a suit against Defendant, individually and as Personal Representative of the Estate, and also against the devisees of the will.  After a bench trial, the case was submitted on theories of unjust enrichment, fraudulent misrepresentation, and money had and received.  Plaintiff moved to dismiss all defendants except the Personal Representative.

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

The circuit court entered a judgment against the Personal Representative and dismissed the remaining defendants.  The trial court did not make findings of fact or conclusions of law, and neither party requested that the court do so.  Personal Representative appealed.

 Court of Appeals, J. Crane, Held:

Affirmed.  Defendant argues that the court’s judgment cannot stand on any of the three counts submitted.  The trial court did not specify the theory or count on which its judgment was based, and when multiple theories are available, the judgment can be affirmed on any reasonable theory pleaded and supported by the evidence.  When neither party requests findings of fact or conclusions of law, all fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.  The court addressed the theory of unjust enrichment first.

Defendant argues that he was not unjustly enriched by Plaintiff’s payment of the second deed of trust, in that the payment benefited a third party.  However, the Estate received a benefit because Plaintiff paid off the Estate’s obligation on the second deed of trust without charging the Estate at closing or otherwise receiving reimbursement from the Estate.  By virtue of receiving a distribution from the Estate, defendant also individually received this benefit and is liable for its restitution.  Defendant argues that Broker received the benefit of the repayment.  However, Broker was actually harmed when its funds were disbursed to the Estate without a deduction for the second mortgage.  It was merely made whole when Plaintiff paid off the second mortgage as its title insurer.  Defendant’s liability for unjust enrichment is not in any way affected by the fact that Broker was protected from its loss.  It would be unjust to allow Defendant to retain the portion of sale proceeds that should have been withheld to pay the second deed of trust, the amount Plaintiff had to pay with its own funds to satisfy that obligation.  Because the judgment can be affirmed on the theory of unjust enrichment, the court did not need to reach the other two challenged theories.

LeKander v. In the Estate of William Robert LeKander Sr., 345 S.W.3d 282 (Mo.App. S.D. 2011)

Factual Background:

Mr. and Ms. LeKander had purchased a home together during their marriage.  They divorced in April 2009.  A settlement agreement, drafted by Ms. LeKander’s attorney, was incorporated into the divorce decree; it provided the home would be sold, and Mr. and Ms. LeKander would split the “proceeds”.  Until then, the agreement provided Ms. LeKander would vacate the home, and Mr. LeKander would continue to live there.  Ms. LeKander made interest-only payments on the mortgage.  The home still had not been sold at Mr. LeKander’s death in June 2009.  Ms. LeKander filed a claim against the estate of her ex-husband seeking payment of the outstanding balance of the mortgage.          

Greene County Circuit Court, J. Conklin, Held:

The trial court found the language in the settlement agreement to be ambiguous.  The trial court entered a judgment denying Ms. LeKander’s claim for the full balance of the mortgage and awarded her a reimbursement for the interest-only payments she had made after Mr. LeKander’s death.

Court of Appeals, J. Burrell, Held: 

Affirmed.   Ms. LeKander tried to argue two points on appeal.

As to her first point, Ms. LeKander contended the trial court erred in finding ambiguity in the language of the settlement agreement.  Marital settlement agreements are construed using ordinary contract principles, and whether a contract is ambiguous is a question of law.  An ambiguity occurs when, in looking at the four corners of a document, the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms. Here, the Court pointed out that “proceeds” could either mean (1) total amount brought in by a sale or (2) the net amount received after deductions.  Additionally, language stating that Mr. LeKander was to make monthly payments “until home is sold,” could be construed to mean Mr. LeKander would not assume the entire indebtedness, as Ms. LeKander tried to argue.  This Court finds reasonable persons could fairly and honestly differ as to what the language in the settlement agreement means, thus resulting in an ambiguity.

In second point, Ms. LeKander argued the trial court failed to look beyond the face of the agreement to the parties’ intent.  If a contract is ambiguous, Missouri law states it will be construed against the drafter where no other evidence of the parties’ intent exists.  Even if all the evidence Ms. LeKander brings forth was believed, the Court pointed out that there was nothing to demonstrate Mr. LeKander’s intent.  The intent of both parties is relevant in construing an ambiguous contract.  In the absence of credible extrinsic evidence of both parties’ intent, this Court found that the trial court properly construed the contract against the drafter, Ms. LeKander.

Cassidy v. Cassidy, 356 S.W.3d 339 (Mo. App. S.D. 2011)

Factual Background:

Prior to their 1996 marriage, decedent asked Carolyn her thoughts on a prenuptial agreement.  When Carolyn responded that she never had one and knew no attorneys, decedent told Carolyn she did not need an attorney, and his attorney would draft the Agreement.  The Agreement stated it was made pursuant to Section 451.220 and essentially waived all rights of the surviving spouse, specifically the right to elect against a will.  Decedent supplied all the information for the Agreement, and Carolyn was never consulted by any attorney.  Six hours before the wedding, decedent presented the Agreement to Carolyn, asked her to sign it, and told her “not to worry—this is just protocol.”  Carolyn signed it without having time to read it in detail, without being able to ask questions, and without understanding the rights she was waiving.  Decedent died testate in 2008, and Carolyn learned for the first time that decedent had executed a will in 1995 leaving everything to his daughter and had not fully disclosed all of his assets in the Agreement.  The daughter sought to enforce the Agreement.  Carolyn filed a declaratory judgment against the daughter asking the Agreement be declared void and unenforceable.

 Crawford County Circuit Court, J. Bernstein, Held:

The  trial court set the Agreement aside.  The basis for the  trial court’s decision included findings and conclusions that Carolyn did not understand the Agreement, was unrepresented and uninformed, that there was a lack of full disclosure by decedent, that the Agreement was not supported by fair consideration, that Carolyn was “overreached and defrauded” by the Agreement, and that it was unconscionable.

Court of Appeals, J. Bates, Held:

Affirmed.  As the party seeking to enforce the Agreement, the daughter bore the burden of proving it complied with the requirements of Section 474.200.  As the surviving spouse of a person who died testate, Carolyn had a statutory right to elect to take against the will.  The daughter argued that Carolyn waived this statutory right by signing the Agreement.  One of the statutory requisites for a valid waiver is that “there be full disclosure of the nature and extent of the right being waived…”

Citing the Supreme Court case of In re Estate of Youngblood, the Court held that “contractual recitals” will not save a prenuptial agreement if the spouse surrendering martial rights demonstrates that there has been overreaching or imposition.  In this case, decedent had his attorney draft the Agreement, told Carolyn she did not need an attorney, presented it to Carolyn only six hours before their wedding requesting her to sign it immediately, and downplayed the importance of the Agreement.  The trial court’s conclusion that Carolyn had been overreached and defrauded was correct, and the daughter failed to meet her burden of proving that there was full disclosure as to the rights Carolyn was surrendering or that there full disclosure of decedent’s assets.

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