Section 23.21 Pleading Fiduciary Obligation From Informal Relationships

• Library: Estate Administration 2014 Supp

3. (§23.21) Pleading Fiduciary Obligation From Informal Relationships

Beyond the traditional relationships that are generally accepted to encompass fiduciary obligations, the law has long recognized that fiduciary status can arise in a variety of informal circumstances. A “confidential relationship” represents a term of art in the law and has been held by many authorities to be synonymous with a fiduciary relationship. Kratky v. Musil, 969 S.W.2d 371, 377 n.1 (Mo. App. W.D. 1998). See George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees § 482 (Rev. 2^nd ed. 1978) (Many situations exist that are akin to a formal fiduciary relationship but the law has no special designation for the position of the parties. “[Y]et it is so similar in its creation and operation that it should have like results.”). The term denotes a situation “in which a special confidence is reposed on one side [of the relationship] and there is resulting domination and influence on the other.” Kratky, 969 S.W.2d at 377 n.1 (quoting Chmieleski v. City Prods. Corp., 660 S.W.2d 275, 293–94 (Mo. App. W.D. 1983)). To establish a confidential or fiduciary relationship outside of traditional formal relationships, the following basic elements must be pleaded and proven:

(1) as between the parties, one must be subservient to the dominant mind and will of the other as a result of age, state of health, illiteracy, mental disability, or ignorance;

(2) things of value

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