Section 18.8 Construction of Wills and Trusts Independent of Administration

• Library: Estate Administration 2014 Supp

4. (§18.8) Construction of Wills and Trusts Independent of Administration

The issue remains whether the probate division has jurisdiction to construe wills and testamentary trusts independent of estate or trust administration. Before the amendment to Article V of the Missouri Constitution, it was clear that the probate court did not have that jurisdiction. But now that the probate divisions are a part of the circuit court, a strong argument can be made that the probate division does have that jurisdiction in the situation in which the judge of the probate division is now a circuit judge. The probate divisions are part of the circuit court, and the circuit court has always had this jurisdiction. See Hamer v. Cook, 24 S.W. 180, 183 (Mo. 1893).

The Missouri Constitution provides that the former probate judges who became circuit judges can, by their own consent, “hear, try and determine any case within the jurisdiction of the circuit court.” Mo. Const. art. V, § 27.4.a. But an associate circuit judge in the probate division may not have the power to construe wills and testamentary trusts independent of estate or trust administration. Those...