Southern District Upholds Mother’s Trust Amendment to Disinherit Son – executed the day she suffered
Updated: Oct 11, 2018
Matter of Killian, SD 35150, 2018 WL 4327885, at *1 (Mo. Ct. App. Sept. 11, 2018)
On the night of March 9, 2016, hours before she suffered a stroke that would ultimately take her life, Betty Killian met with her attorney and a bank officer to review a trust amendment intended to disinherit her son Joe.
In 2012, Joe bought out his father’s interest in one of the family businesses, and later failed or refused to make payments on debt obligations the business owed to his parents. Until his death in 2015, Betty’s husband Bob repeatedly bemoaned how Joe had swindled him into the buyout and failed to pay Bob a fair price for his ownership interest. Betty’s lawyer recommended that the trust amendment be accompanied by an explanation that this failure to pay was the prime motivator for the disinheritance. The un-finished, hand-written letter Betty was writing the night she suffered her stroke eluded to this issue in its last sentence, wherein she wrote “your Dad did not get paid one dime after we sign (sic) the paper.”
At trial, Joe challenged whether his mother’s trust amendment should be reformed and undone due to her mistaken belief that “Joe paid nothing” for their share of the family business. Green County Circuit Judge Michael J. Cordonnier denied Joe his requested relief finding that he had “not proved by clear and convincing evidence that Betty was mistaken in her belief that Joe paid nothing for SDC[.]” The Southern District upheld Judge Cordonnier’s decision finding that it was not against the weight of the evidence at trial.
Appeals (of any kind) seeking to undo a trial court’s factual findings are nearly impossible to win. Here, Judge Cordonnier considered the evidence at trial and found that there was SOME evidence that Betty reasonably believed Joe had not paid Bob what he should have for the family business. Appellate courts cannot and will not re-weight the evidence.
In many situations it is best for a grantor or trustor of a trust NOT to provide a reason a for disinheritance. The grantor/trustor need not give a reason, and as in this case, it may provide a colorable basis for the complaining party to file suit in an effort to undo the disinheritance.