REBECCA CHIPMAN ET AL v. JACK DAUGHERTY ET AL (2026)

This appeal arises out of a dispute over the late Mr. William Hugh Tincher's (“Tincher”) Revocable Living Trust Indenture dated December 16, 2008 (“Original 2008 Trust”), and two subsequent amendments to the Original 2008 Trust made in April 2020 (“April 2020 Amendment”) and June 2020 (“June 2020 Amendment”) (collectively “2020 Amendments”). In the underlying lawsuit, Ms. Rebecca Chipman, Mr. Robert Berry, and Ms. Cynthia Hogan (collectively “Appellants”) challenged the validity of the 2020 Amendments to the Original 2008 Trust, which effectively removed their beneficiary interest in the trust assets, arguing that the 2020 Amendments were procured through undue influence or that Tincher lacked testamentary capacity to execute the 2020 Amendments. Appellants appeal from the interlocutory order/judgment of the Probate Division of the Circuit Court of Boone County, Missouri (“probate court”), which declared that pursuit by Appellants of their claims challenging the validity of the 2020 Amendments would trigger the “no-contest provision” contained in the Original 2008 Trust and result in the forfeiture of their rights to receive any property or interests in the trust estate. We vacate the probate court's interlocutory determination and remand for entry of an interlocutory determination consistent with this opinion.

Factual and Procedural History

The facts relevant to this interlocutory appeal are not in dispute. In December 2008, Tincher executed the Original 2008 Trust which generally provided that the trust corpus would pass to Tincher's family members, including Appellants, upon his death. The Original 2008 Trust additionally stated that if Tincher became incapacitated, one of Tincher's brothers would serve as trustee with a different brother listed as an alternate successor trustee. The Original 2008 Trust included a no-contest clause:

No-Contest Provisions. If any person singularly or in connection with any other person directly or indirectly contests in any court the validity of this document, including any amendments thereto, then the right of that person to receive any property or interests in the Trust Estate shall cease and that person and all of that person's lineal descendants shall be deemed to have predeceased Grantor. Notwithstanding the foregoing, nothing in this paragraph shall be construed to prevent a beneficiary from or penalize a beneficiary for seeking enforcement of such beneficiary's rights as a beneficiary in a court of equity.

The validity of the Original 2008 Trust is not challenged by Appellants.

Appellants allege they first noticed Tincher beginning to decline cognitively in 2018, when he was seventy-eight years old. In April and June 2020, amendments to the Original 2008 Trust were purportedly executed by Tincher that made some changes while reaffirming the unmodified terms. The April 2020 Amendment named Jack Daugherty, a non-family member, as the primary beneficiary of the trust and Jack Daugherty's lineal descendants as alternate beneficiaries. The June 2020 Amendment provided that Jack Daugherty would serve as sole trustee should Tincher become incapacitated and that Central Trust and Investment Company of Columbia, Missouri, would serve as alternate successor trustee—replacing Tincher's brothers in those roles. During this period, Tincher separately executed a document granting Jack Daugherty durable power of attorney for all purposes and listing Jack Daugherty's son as the first alternate durable power of attorney.

On January 8, 2021, Tincher was admitted to a senior care facility, and two months later, Jack Daugherty certified that Tincher was incapacitated. Due to complications from senile degeneration of the brain, Tincher died in December 2024. Appellants learned of the 2020 Amendments and the power of attorney designation after Tincher's death.

On May 23, 2025, Appellants filed the underlying petition against Jack Daugherty and his wife, Cynthia Daugherty. In Count I, Appellants sought a declaratory judgment invalidating both the April 2020 Amendment and June 2020 Amendment to the Original 2008 Trust, arguing that Tincher either lacked testamentary capacity at the time the 2020 Amendments were executed or that the 2020 Amendments were the product of undue influence by Jack and Cynthia Daugherty. In Count II, Appellants requested an interlocutory determination, pursuant to section 456.4-420.1, RSMo ¹ on whether proceeding with Count I's challenge to the 2020 Amendments would trigger the trust's no-contest clause. As to the interlocutory determination, the probate court noted that no-contest clauses are enforceable “if the instrument in which they are found is valid” and, based upon Appellants’ admission to the validity of the Original 2008 Trust, it concluded that proceeding with Count I would “trigger a forfeiture of their rights to receive any property or interests in the trust estate[.]”

Appellants appeal the probate court's interlocutory determination, pursuant to section 456.4-420.3.

Standard of Review

When reviewing a declaratory judgment our standard of review is the same as in any other court-tried case. We will affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. When the entry of a declaratory judgment involves a question of law, such as the proper interpretation or construction of a trust instrument, our review is de novo.

Larson v. Winkler, 690 S.W.3d 193, 200 (Mo. App. W.D. 2024) (internal marks and citations omitted) (reviewing a probate court's interlocutory safe harbor determination regarding the applicability of a no-contest clause in a trust).

Analysis

Section 456.4-420, enacted by the general assembly in 2014, provides a mechanism by which an interested party can seek to avoid the effect of no-contest clauses in trusts. Knopik v. Shelby Invs., LLC, 597 S.W.3d 189, 192-93 (Mo. banc 2020). The provision permits “an interlocutory determination whether a particular ․ petition ․ by [an] interested person would trigger application of the no-contest clause or would otherwise trigger a forfeiture that is enforceable under applicable law and public policy.” § 456.4-420.1. When ruling on such a request, “the court shall consider the text of the clause, the context to the terms of the trust instrument as a whole, and in the context of the verified factual allegations in the petition.” § 456.4-420.2. The interlocutory determination “shall result in the no-contest clause being enforceable to the extent of the court's ruling, and shall govern application of the no-contest clause to the extent that the interested person then proceeds forward with the claims described therein.” § 456.4-420.4.

The probate court found that Appellants’ failure to challenge the validity of the Original 2008 Trust instrument was fatal to their efforts to invalidate the 2020 Amendments without triggering the perils of the no-contest clause. This view appears borne from the probate court's belief that the no-contest clause is present only in the Original 2008 Trust and that its defeat may only be accomplished by invalidating that instrument. This approach ignores that Appellants are challenging the validity of the 2020 Amendments and, as later explained, each of those amendments created new operative trust instruments—each including the no-contest clause—and an invalidity finding related to the trust instruments produced by the challenged 2020 Amendments would render the no-contest clause contained in those trust instruments ineffective.

The trust at issue in this appeal was created in 2008, amended in April 2020, and amended again in June 2020. The Original 2008 Trust was the operative trust instrument until Tincher purported to execute the April 2020 Amendment. The April 2020 Amendment reaffirmed and amended the Original 2008 Trust; thus, the execution of the April 2020 Amendment produced a new operative trust instrument consisting of the terms of the Original 2008 Trust as modified by the April 2020 Amendment. The June 2020 Amendment similarly reaffirmed the Original 2008 Trust as well as the modifications made through the April 2020 Amendment and purported to enact additional changes; thus, the June 2020 Amendment created a new operative trust instrument comprised of the Original 2008 Trust as amended by both the April 2020 Amendment and June 2020 Amendment. In other words, each 2020 Amendment resulted in a new operative trust instrument, consisting of the terms of the Original 2008 Trust as subsequently modified. Since the April and June 2020 amendments did not remove the no-contest clause contained in the Original 2008 Trust, each successive operative trust instrument maintained the no-contest clause.²

The evolution of the trust instrument is important because it illustrates a critical flaw in the probate court's emphasis on the failure of Appellants to challenge the validity of the Original 2008 Trust in reaching its conclusion that pursuit of their challenge to the 2020 Amendments would, without exception, result in forfeiture of their interest in the trust. Each iteration of the trust reaffirmed the unmodified terms of the Original 2008 Trust—including the no-contest clause. Thus, a finding that the Original 2008 Trust (and the no-contest clause contained therein) was invalid would be irrelevant, because the no-contest clause could still be valid in the current operative trust instrument (following the June 2020 Amendment) and the trust instrument created by the April 2020 Amendment.³ See Hall v. St. Louis Union Tr. Co., 602 S.W.2d 455, 457 (Mo. App. E.D. 1980) (“Here, the third codicil republished both the will and the first and second codicils. If the will or either of the first two codicils were found invalid when made, they would still be valid if the third codicil were found valid.”). Thus, contrary to the probate court's approach, Appellants’ validity challenge must start with the current operative trust instrument and work backwards. See id.

The current operative trust instrument is the last one purportedly executed by Tincher—consisting of the language of the Original 2008 Trust as modified by the amendments of April and June of 2020. Appellants allege that this instrument is invalid, arguing Tincher lacked capacity or was unduly influenced in its execution. If Appellants successfully establish under either theory that the trust instrument created by the June 2020 Amendment was not legally valid, that instrument—including its no-contest provision—would be ineffective. See Finkle-Rowlett Revocable Tr. Dated Aug. 28, 2009 v. Stiens, 558 S.W.3d 95, 100 (Mo. App. W.D. 2018) (“If the testator lacked testamentary capacity at the time of execution, the will or trust (or any amendments thereto) is deemed void,” and “[t]he invalidity of a will, trust, or its amendments encompasses all clauses therein, including a no-contest clause, and renders them of no effect and unenforceable.”); Rossi v. Davis, 133 S.W.2d 363, 372 (Mo. 1939) (A challenger is not precluded by a no-contest clause from seeking redress from the courts as the “courts are open to him to show, if he can, that the alleged will or instrument is not the will of his ancestor—is not valid—in which case the whole instrument falls.”); see also Ivie v. Smith, 439 S.W.3d 189, 199 n.12 (Mo. banc 2014) (confirming that finding that trust amendments are not valid rendered the no-contest clauses contained therein ineffective). However, if Appellants pursue their claims and fail to invalidate the June 2020 trust instrument, the no-contest clause would be triggered and enforceable against Appellants. See Rossi, 133 S.W.2d at 372 (A beneficiary under an instrument containing a no-contest clause may, “without legal restraint, submit to the court the question, is the purported instrument in fact the will of the maker? If it be adjudged that it is not, he wins. If it be adjudged that it is, he loses.”). Assuming success invalidating the June 2020 trust instrument, the immediately prior trust instrument (produced by the April 2020 Amendment) would become the operative trust instrument. However, Appellants also seek a declaration that this instrument is legally invalid for the same reasons. Again, if Appellants were to prove either claim, the April 2020 trust instrument would be invalid and its no-contest provision would again be legally ineffective. This would leave the Original 2008 Trust whose validity is unchallenged by any party in this action.⁴

This is consistent with this Court's approach in Stiens, which involved a validity challenge to a trust that had been amended on two occasions. See 558 S.W.3d at 97. A no-contest clause was added during the amendment process but the validity challenge was directed at the second amendment only. Id. The trial court determined that the validity challenge triggered the no-contest clause, thereby divesting the challenger of any interest in the trust and standing to bring the challenge. Id. at 98. In reversing, we explained that a successful challenge to the validity of the second amendment would render the no-contest clause contained in that trust instrument ineffective. Id. at 100. Notably, we did not require the challenger in Stiens to also attack the validity of the surviving first amendment despite a no-contest clause being present in that instrument.

The same is true here. If Appellants successfully establish that the current operative instrument produced by the June 2020 Amendment is not legally valid, the no-contest clause contained therein will be ineffective. Similarly, if Appellants establish that the April 2020 trust instrument is legally invalid, the no-contest clause contained in that instrument would also be ineffective. Of course, by choosing to pursue those challenges, Appellants will bear the risk of failing to establish the instruments created by either of the 2020 Amendments are invalid, an outcome that will trigger the no-contest clause and result in forfeiture of their interests in the trust.⁵

While the probate court was correct that Appellants cannot pursue their validity attacks directed at the trust instruments produced by the April 2020 and June 2020 amendments without fear of triggering the no-contest clause, its interlocutory determination applies the no-contest clause too broadly. See § 456.4-420.4 (“An order or judgment ․ shall result in the no-contest clause being enforceable to the extent of the court's ruling ․”). Instead, the interlocutory determination should have declared that: Appellants may proceed with their claims beginning with their allegation that the June 2020 trust instrument is invalid because Tincher lack testamentary capacity or was unduly influenced, and if successful, proceed to prove their similar allegations directed against the April 2020 trust instrument and, if both are successful, and those instruments are declared legally invalid, the no-contest clause will not be triggered and forfeiture of their interests in the trust property will be avoided. However, if Appellants elect to pursue their claims, a finding that either trust instrument produced by the 2020 Amendments is legally valid will trigger the no-contest clause and result in a forfeiture of their interests in the trust property.

We vacate the probate court's interlocutory determination and remand for entry of an interlocutory determination consistent with this opinion.⁶

Dissenting Opinion

Because the majority opinion's analysis has the effect of ignoring Mr. Tincher's (trust settlor) clear and unambiguous no-contest provision contained in his Revocable Living Trust Indenture dated December 16, 2008 (“2008 Trust”), and, for all practical purposes, renders it a nullity, I respectfully dissent.

Our Supreme Court has recently reiterated its century-long precedent that, “[t]he basic principle is that ‘a no-contest or forfeiture provision is to be enforced where it is clear that the [settlor] intended that the conduct in question should forfeit a beneficiary's interest under the [trust].’ ” Knopik v. Shelby Invs., LLC, 597 S.W.3d 189, 192 (Mo. banc 2020) (second and third alteration in original) (emphasis added) (quoting Cox v. Fisher, 322 S.W.2d 910, 914 (Mo. 1959)). And, “[w]hen a settlor explicitly and unambiguously describes the type of conduct by a beneficiary that will cause forfeiture, the settlor's clear intent cannot be overlooked.” Id. (emphasis added).

Thus, the critical question is: What is “the conduct in question” that operates to forfeit a beneficiary's interest under the trust?

In Knopik, the prohibited act relevant to the Court's discussion related to trustee maladministration of the trust. Id. at 191. In Rossi v. Davis, 133 S.W.2d 363, 370 (Mo. 1939), the prohibited act was an unsuccessful proceeding to challenge the validity of the trust. In Cox, the prohibited act was a challenge to the validity of the trust by a person who was then a beneficiary of the trust. 322 S.W.2d at 912. In Finkle-Rowlett Revocable Tr. Dated Aug. 28, 2009 v. Stiens, 558 S.W.3d 95, 97 & n.3 (Mo. App. W.D. 2018), the prohibited act was any attempt to impair, invalidate, or set aside provisions in the trust by any person, devisee, or legatee of the trust.

In other words, the words used by the settlor have meaning.

Here, the words of the settlor in the 2008 Trust could not be broader, plainer, nor more unambiguous:

If any person singularly or in connection with any other person directly or indirectly contests in any court the validity of this document, including any amendments thereto, then the right of that person to receive any property or interests in the Trust Estate shall cease and that person and all of that person's lineal descendants shall be deemed to have predeceased [settlor].

(Emphasis added.)

Though the Cox court avoided the no-contest provision by concluding that the contestants were not yet “beneficiaries” of the trust (as was relevant to the no-contest provision) so that they were not contestants in the legal sense and their rights could not be forfeited by their premature challenge to the validity of the trust, 322 S.W.2d at 916, the no-contest provision in the instant case prohibits “any person,” not “any beneficiary,” from challenging the validity of the 2008 Trust, including any amendments thereto. Where the no-contest provision in Rossi only prohibited an “unsuccessful” challenge to the validity of the trust, 133 S.W.2d at 370, no such qualifier exists in the no-contest provision in the instant case. Though Finkle-Rowlett details trust amendments that, for the first time, introduced a no-contest provision into the express language of the amendments to the original trust instrument—a trust instrument that did not contain such a no-contest provision in its express terms, 558 S.W.3d at 97—the language of the no-contest provision in the instant case is only expressly contained in the terms of the 2008 Trust and is not expressly mentioned in the amendments to the 2008 Trust, nor is there any express language incorporating by reference the no-contest provision into the express terms of the amendments to the 2008 Trust.

Instead, the 2008 Trust—the validity of which is not challenged—is the only trust instrument relevant to this case that expressly delineates a no-contest provision that plainly and unambiguously prohibits “any person” (which clearly includes Appellants) from challenging the validity of the 2008 Trust, including any amendments thereto (which Appellants have done in the underlying lawsuit). So, I respectfully submit that we must begin from a position of analysis that the settlor's no-contest provision “is to be enforced where it is clear that the [settlor] intended that the conduct in question should forfeit [the trust contestant's] interest under the [trust].” Knopik, 597 S.W.3d at 192 (first and third alteration in original) (quoting Cox, 322 S.W.2d at 914).

The majority opinion today expresses its concern that, absent its declaration of law which effectively serves to reform the settlor's clear and unambiguous no-contest provision, it could lead to a situation where purported bad actors could take advantage of the settlor, and it could lead to a situation that does not accurately reflect the settlor's intentions with regard to distribution of the trust assets.

First, this declaration of law effectively re-writes the no-contest provision to mirror the Rossi no-contest provision that only prohibited an unsuccessful challenge to the validity of the trust.¹ That is not, however, the role of this court, and it was not included in the settlor's express, plain, and unambiguous no-contest provision terms in the present case.

Second, our Supreme Court has very recently reviewed a factual scenario in which a trustee admitted that the actions of the trustee in refusing to make distributions required to be made under the terms of the trust had occurred and would continue to occur at the whim of the trustee—clearly admitting that the trustee was refusing to act as the trust settlor had intended for the trustee to act—clearly, then, admitting that the trustee was a “bad actor.” See id. at 191. And yet, because the relevant act prohibited by the no-contest provision in the trust was challenging alleged maladministration of the trust assets by the trustee, our Supreme Court stated that “[c]ourts cannot ignore the plain language of a no-contest clause” and affirmed the trial court's entry of judgment in favor of the trustee—thereby resulting in forfeiture for the trust beneficiary who challenged the trustee's acts that admittedly violated the terms of the trust. Id. at 193.

The majority opinion seeks to avoid the harsh result that Knopik states we cannot ignore by concluding that every amendment to a trust, by operation of law, incorporates by reference all provisions from the preceding operative trust instrument and that, absent the settlor expressly removing the no-contest provision from the amendments, it must be presumed included in the amendments. I submit that the reason the majority opinion participates in such legal gymnastics is that the majority opinion wants to create the procedural scenario of Finkle-Rowlett, where the no-contest provisions first appeared in the amendments and not in the original trust.

Before addressing Finkle-Rowlett, let us think first about the practical ramifications of what the majority opinion proposes. If, as the majority opinion suggests, Appellants are entitled to ignore the present no-contest provision and are authorized to do that which is prohibited in the original 2008 Trust no-contest provision—challenge the validity of any amendments to the 2008 Trust—then Appellants may challenge the validity of the second amendment to the 2008 Trust. If successful, Appellants will then be entitled to challenge the first amendment to the 2008 Trust. And, if successful, all that will be left is the 2008 Trust—which is what Appellants want. But, of course, any interested person would be able to challenge the validity of the original 2008 Trust without penalty under the same reasoning if they so desired. Hence, the act prohibited—challenging the validity of the 2008 Trust or any amendments thereto—will, for all practical purposes, never be an operable prohibition.² Under the majority view, challenges to the “validity” of trust instruments are never prohibited, even if that is the act that the no-contest provision prohibits. As itemized in this dissenting opinion, Missouri Supreme Court precedent does not support the result proposed by the majority opinion.

Next, I find Finkle-Rowlett unavailing to the majority view expressed today. In Finkle-Rowlett, this Court reviewed a probate court's determination that a petitioner's challenge to the validity of the second amendment to the terms of a trust that had originated eight years previously would trigger a no-contest clause that was not expressly contained in the original trust but was contained within the expressly worded terms of the challenged second amendment. 558 S.W.3d at 97-98.³ On appeal, this Court reversed the probate court's determination because it erred in failing to address whether the trust instrument that was challenged—the second amendment—itself was invalid on the basis the settlor lacked capacity to execute it. Id. at 100. In reversing the probate court, we reasoned that, if the challenged trust amendment were deemed invalid, then the no-contest clause expressly contained within that trust instrument—the second amendment—would also be void and unenforceable:

[T]he gravamen of Stiens's complaint is that Finkle-Rowlett lacked testamentary capacity to execute the Second Amendment which, if established, would render it void and its no-contest clause unenforceable. As a result, the probate court was required to first resolve the issue of Finkle-Rowlett's testamentary capacity to execute the Second Amendment

Id. at 100. Importantly, what we did not hold in Finkle-Rowlett was that the probate court must examine the validity of every trust instrument that impacts the terms of a trust relationship between the settlor and trust beneficiaries when determining the applicability of a no-contest clause under section 456.4-420.1; instead, we held that the probate court must determine the validity of the trust instrument containing the express language of the no-contest clause, see id. In fact, there was no discussion whatsoever about the validity of the original trust instrument nor the validity of the trust instrument containing the terms of the first amendment to the original trust instrument in Finkle-Rowlett. Nor was there any discussion by our Court about the validity of all three Finkle-Rowlett trust instruments (original trust, first amendment, and second amendment) as a collective whole in our discussion of what trust instrument or instruments must be evaluated for validity in making the interlocutory safe harbor determination relating to a no-contest clause.

I submit that the reason we must evaluate the words contained in each separate trust instrument first and before deeming an original trust and any amendments thereto as one trust instrument, is grounded in the same principles Missouri courts have applied to wills and codicils. “The capacity required to make or amend a revocable trust is the same as that required to make a will—‘testamentary capacity.’ ” Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014) (quoting section 456.6-601). And, regarding wills and codicils, Missouri courts treat each instrument separately and independently for the purpose of evaluating whether the instrument was validly created. That is because the testator may have capacity to create one instrument but not another. However, once each document is determined to have been validly created, they are construed as if they are part of the same instrument:

Plaintiffs argue that the will and codicils must be considered one will speaking from the date of the last codicil and that under that will [will contestant] is not a legatee. If the will and codicils had to either stand or fall as a whole, this position would have merit. Plaintiffs base their argument on the principle that a codicil is to be treated as a subsequent clause of a will for the purpose of interpretation and construction. First National Bank v. Solomon, 412 S.W.2d 458, 460 (Mo. 1967). That principle does not apply here, where, the purpose for considering the codicil is for testing the validity of the instruments. The requirements of attestation and capacity of testator apply to codicils as well as wills and a codicil may fail while the will does not. See Sturm v. Routh, 373 S.W.2d 922 (Mo. 1964).

Hall v. St. Louis Union Trust Co., 602 S.W.2d 455, 457 (Mo. App. E.D. 1980) (emphasis added).

The reason this is important is that, where there is not an applicable no-contest provision in any trust instrument relevant to trust administration, we still must not, by operation of law, consider an original trust and any amendments thereto as one trust instrument unless and until each trust instrument—the original trust and the amendments to the trust—are separately admitted by the relevant parties as being valid or after the separate trust instruments are evaluated for validity. But, here, where there is a no-contest provision in the original trust instrument—the 2008 Trust—and the validity of that trust instrument is not challenged by any party to this proceeding, the parties are not permitted to challenge the validity of the amendments to the 2008 Trust because they are obligated to follow the dictates of the unchallenged 2008 trust instrument, which includes the prohibition of challenging the validity of any amendments to the 2008 Trust.

Thus, I believe the probate court correctly concluded in its safe harbor review that the no-contest clause found in the unchallenged 2008 Trust is operable to the present challenge by Appellants to the validity of the 2020 Amendments.

That said, I note that the no-contest clause safe harbor review statutory scheme, adopted by our legislature in 2014, refers to “forfeiture that is enforceable under applicable law and public policy.” See § 456.4-420.1 (emphasis added). Though I do not believe that our legislature announced any new public policy in this statutory scheme and that our Missouri Supreme Court has long rejected adopting a public policy that recognizes a good faith or probable cause exception to applicability of no-contest provisions in trust instruments,⁴ the Supreme Court did see fit to include the following dictum in its Knopik decision: “Because of the [contestant's] failure to utilize section 456.4-420, this Court need not reach the issue of either delineating specific exceptions to the application of no-contest clauses or deciding whether a good faith or probable cause exception should be introduced in Missouri[,]” Knopik, 597 S.W.3d at 193 (emphasis added).

Here, conversely, the Appellants have properly utilized the section 456.4-420.1 safe harbor interlocutory review process. Thus, while this Court lacks constitutional authority to announce a new public policy that would adopt a good faith or probable cause exception in the current appeal, see Stratman v. Allstate Fire & Cas. Ins. Co., 695 S.W.3d 96, 103 (Mo. App. W.D. 2024) (“[W]e are constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court, and inquiries questioning the correctness of such a decision are improper.”), I also recognize that this may be a case that the Supreme Court may decide warrants transfer for consideration of announcing new public policy considerations in the State of Missouri.

To me, the practical argument of the majority opinion is just this—that the policy of this state should not allow a settlor to be unduly influenced by an alleged bad actor into executing a trust amendment that does not fairly represent the settlor's intent. But, I respectfully submit that that is a decision for a higher court—not this Court.

For these reasons, I respectfully dissent.

FOOTNOTES

1.   Section 456.4-420.1 provides:If a trust instrument contain[s] a no-contest clause ․ an interested person may file a petition to the court for an interlocutory determination whether a particular motion, petition, or other claim for relief by the interested person would trigger application of the no-contest clause or would otherwise trigger a forfeiture that is enforceable under applicable law and public policy.All statutory references are to RSMo 2016.

2.   The dissent describes the evolution of the Tincher trust adopted by the majority as “legal gymnastics” while embracing the probate court's view that the no-contest clause is only found in the Original 2008 Trust and that, in order to challenge the 2020 Amendments without triggering the no-contest clause, Appellants must successfully invalidate the Original 2008 Trust. In support of this conclusion, the dissent necessarily rejects the majority's position that the terms of the Original 2008 Trust are incorporated into the operative trust instruments created following each of the 2020 Amendments. As a result, under the dissent, Appellants would first be required to nullify the Original 2008 Trust to eliminate the no-contest clause and, if successful, then turn their attention to invalidating the 2020 Amendments. This is illogical because the 2020 Amendments simply modify terms in the Original 2008 Trust and, under the dissent, that instrument will have already been deemed ineffective (and its terms not incorporated into the amendments). However, the 2020 Amendments do not exist as independent, stand-alone, instruments in a vacuum but are inextricably interconnected with the Original 2008 Trust. To illustrate this point: What if the Original 2008 Trust were challenged and found to be invalid due to Tincher's lack of capacity, but the later 2020 Amendments were deemed valid because he had subsequently regained capacity? What would be the trust instrument in that scenario? Under the dissent's view, the trust would apparently consist solely of the terms specifically contained in the amendments.

3.   For example, if Tincher lacked capacity to execute the Original 2008 Trust but had regained capacity when he executed the June 2020 Amendment through which he reaffirmed the Original 2008 Trust and the April 2020 Amendment, the current operative trust would be valid, including the no-contest clause.

4.   That the surviving trust instrument would contain a no-contest clause prohibiting a challenge to the validity of the Original 2008 Trust, “including any amendments thereto,” is of no consequence. Under the outlined scenario, the trust instruments created by the purported 2020 Amendments will have been determined legally invalid and therefore not amendments to the Original 2008 Trust at all. Thus, having not challenged amendments to the Original 2008 Trust (or the Original 2008 Trust itself), Appellants’ actions would not implicate the surviving no-contest clause.

5.   The dissent argues that the majority's approach will render the no-contest clause in the Original 2008 Trust a “nullity” and will permit Appellants to challenge the 2020 Amendments “without penalty.” This is an inaccurate characterization. A purported amendment determined to be invalid is ineffective and thus not an amendment to the Original 2008 Trust. However, as explained above, our view gives full effect to the no-contest clause if either of the challenged trust instruments created by the 2020 Amendments is determined to be valid and Appellants’ forfeiture of their interests in the trust estate can hardly be termed as “without penalty.”

6.   Appellants and Respondents have each filed a motion for attorney's fees on appeal. “In any proceeding brought under [section 456.4-420], the court may award costs, expenses, and attorneys’ fees to any party, as provided in section 456.10-1004.” § 456.4-420.8. Because Appellants appeal pursuant to section 456.4-420.3, this court is authorized to award attorney's fees under section 456.4-420.8. Thus, we turn to section 456.10-1004, which provides: “[i]n a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.” “[Section 456.10-1004] is discretionary; hence, while it grants ․ the authority to award attorney's fees, it does not mandate an award.” Alexander v. UMB Bank, N.A., 632 S.W.3d 385, 393 (Mo. App. W.D. 2021). We exercise our discretion to deny both parties’ motions for attorney's fees on appeal.

1.   The majority opinion concedes that this is how its interpretation of the law can “hardly be termed as ‘without penalty’ ” to the Appellants. For, as the majority opinion notes, if the Appellants are unsuccessful in their validity challenge to the 2020 Amendments, they will suffer the trust forfeiture consequences dictated by the no-contest provision and such a result is the opposite of the no-contest provision “nullity” discussion attributable to the majority opinion by this dissenting opinion.The problem with the majority opinion's “penalty” discussion is that the 2008 Trust no-contest provision does not prohibit unsuccessful validity challenges like the no-contest provision contained in the trust from Rossi v. Davis, 133 S.W.2d 363 (Mo. 1939); instead, the 2008 Trust no-contest provision prohibits any validity challenges.

2.   To be clear, I am not suggesting that for the Appellants to have a path to challenge the 2020 Amendments, they must first attack the validity of the 2008 Trust and its corresponding no-contest provision. Instead, this dissenting opinion merely follows the long line of Missouri Supreme Court precedent; that is, once the 2008 Trust's validity is deemed admitted—as it is here—then the words of that trust instrument, including the no-contest provision, must be interpreted to give the settlor's clear intent meaning. Here, the only way to respect the settlor's clear and unambiguous intent from the no-contest provision in the 2008 Trust is to prohibit any validity challenge to the amendments to the 2008 Trust—not just any unsuccessful validity challenge to such trust amendments.

3.   In fact, the express language of the no-contest provision was also expressly referenced in the terms of the first amendment to the original trust. Under the majority opinion's viewpoint today, including an express reference to the no-contest provision terms in the second amendment was superfluous language that was unnecessary since, by operation of law, those terms from the preceding operative trust instrument (first amendment) were incorporated by reference into the second amendment. Again, this is where I diverge from the majority view expressed today. Instead, I believe each trust instrument must stand alone until all disputes, if any, regarding the validity of each individual trust instrument are resolved, at which point, only then do the combined instruments—original trust and amendments—become, by operation of law, one trust instrument.

4.   See Rossi, 133 S.W.2d at 374 (“We held in Re Chambers’ Estate that [a no-contest] provision was not violat[ive] of any constitutional provision and, as above said, that it was not against public policy.” (citing In re Chambers’ Est., 18 S.W.2d 30 (Mo. banc 1929))); Cox v Fisher, 322 S.W.2d 910, 913 (Mo. 1959) (“[A] valid forfeiture provision is to be enforced upon violation without regard to any exception based upon the good faith and probable cause of the contestant.”); Knopik v. Shelby Investments, LLC, 597 S.W.3d 189, 192 (Mo. banc 2020) (refusing to consider a change to long standing Missouri Supreme Court precedent that has refused to announce a good faith or probable cause public policy exception in Missouri).

Edward R. Ardini, Jr, Judge

Gary D. Witt, Presiding Judge, concurs Mark D. Pfeiffer, Judge, dissents in separate opinion