                 In the Missouri Court of Appeals
                                        Western District

    RANDY W. NETHERTON, MICHAEL L.            )
    NETHERTON and SHERYL N. PERRY,            )
                      Respondents,            )                WD82579
    v.                                        )
                                              )
    SEAN M. NETHERTON,                        )                FILED: December 31, 2019
                                   Appellant, )
    TRAVIS PERRY,                             )
                                 Respondent. )

          APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY
                 THE HONORABLE TIMOTHY J. FLOOK, JUDGE

     BEFORE DIVISION FOUR: KAREN KING MITCHELL, CHIEF JUDGE, PRESIDING,
            LISA WHITE HARDWICK AND CYNTHIA L. MARTIN, JUDGES
        Sean Netherton (“Sean”)1 appeals from the circuit court’s judgment finding that

the first and second amendments to his grandmother’s trust, her new will, and change

of beneficiary forms for her Prudential and Lincoln Financial accounts, all of which

named as beneficiaries him and his cousin, Travis Perry (“Travis”), were null and void

because they were executed at a time when she lacked sufficient mental capacity and

were procured as a result of Sean’s undue influence. The court further found that his

grandmother’s original trust, will, and beneficiary designations on her accounts, all of

which named as beneficiaries her children, Randy Netherton, Michael Netherton, and


1Because the parties share the same surnames of Netherton and Perry, we will refer to them individually
by their first names. No familiarity or disrespect is intended.
Sheryl Perry (collectively, “Respondents”), were valid. On appeal, Sean contends the

circuit court erred in not allowing him to argue, during closing argument, that a

settlement offer that Respondents’ counsel made to his grandmother’s counsel in a

different case constituted an admission of his grandmother’s competency to execute the

disputed documents. He argues that the court further erred in giving instructions that

required him to prove his grandmother had the requisite mental capacity when she

executed the trust amendments and change of beneficiary forms. For reasons

explained herein, we find no error and affirm.

                           FACTUAL AND PROCEDURAL HISTORY

       In 2011, Osta Ann Netherton (“Ann”) and her husband, Morris Netherton

(“Morris”), executed estate planning documents designating how they wanted their

estates divided, who the beneficiaries would be, and who would make decisions if they

were unable to do so themselves. In the Ann Netherton Trust Agreement, dated June

20, 2011, Ann named Respondents as equal beneficiaries. Ann named herself trustee

and Respondents as successor co-trustees in the event of her death, resignation,

adjudication to be incompetent, or inability to serve as trustee. At the same time, Ann

executed a durable power of attorney appointing Sheryl as her agent. If, for some

reason, Sheryl could not serve as Ann’s agent, the durable power of attorney appointed

Randy as her successor agent. In December 2011, Ann and Morris executed the Morris

and Ann Netherton Trust, which provided that, upon the death of the last of them,

Respondents would receive the trust assets. Ann also executed a will, which provided

that all of the property of her probate estate would be distributed to Respondents as




                                             2
trustees of the Morris and Ann Netherton Trust. Thus, Respondents were Ann’s

beneficiaries under all of the estate planning documents that Ann executed in 2011.

       Morris died in November 2012. Ann was capable of managing her affairs until

late summer 2015, when she had three mini strokes. Ann was approximately eighty

years old at the time. Randy left his home in Colorado to live with and care for Ann in

her Gladstone home until December 2015, when Ann was discharged from

rehabilitation. Ann had another stroke in June 2016. Randy and Sheryl took care of

Ann while she was hospitalized following this stroke. The second stroke was “fairly

significant,” and Ann’s doctors noted that, after this stroke, she exhibited functional

decline and poor insight. On August 28, 2016, Dr. Nancy Russell, Ann’s primary care

physician for over thirty years, found that Ann was “mentally confused, not able to make

good decisions for her safety and not taking her medications properly.” Therefore, Dr.

Russell concluded that Ann was “mentally incompetent and not able to make her own

decisions regarding her health and financial matters.”

       In December 2016, Dr. Eric Ecklund-Johnson, a psychologist, performed a

neuropsychological evaluation of Ann. Dr. Ecklund-Johnson noted Ann’s previously-

diagnosed conditions of bipolar disorder, stroke, obstructive sleep apnea, intracranial

hemorrhage, coronary artery disease, carotid artery stenosis, hypertension,

hyperlipidemia, diabetes, and tremor. Dr. Ecklund-Johnson’s impressions of Ann were:

       Neuropsychological findings were significant for evidence of deficits in
       several areas including complex attention, processing speed, executive
       functions, memory (primarily efficiency of initial encoding), and
       visuospatial processing. Although she reported few problems with daily
       functioning, [Ann]’s cognitive profile was consistent with a mild dementia
       syndrome and was suggestive of diffuse/multifocal brain dysfunction, likely



                                             3
        due to cerebrovascular disease to a significant extent given her medical
        history.

Dr. Ecklund-Johnson’s recommendations included the statement: “Most individuals with

similar neuropsychological profiles experience significant difficulty with complex

activities of daily living, such as managing finances and medications.”

        On February 13, 2017, Ann fell at her home and suffered an acute compression

fracture of her back as a result of the fall. On February 17, 2017, four days after she fell

but before she went to the hospital, Ann signed a first amendment to her trust that

deleted her original trust’s provision naming Respondents as successor trustees and

replaced it with a provision naming Sean as the sole successor trustee. Ann was

admitted to the hospital for intractable pain due to her spinal fracture on February 24,

2017.

        On February 27, 2017, Sean arranged for Ann’s financial advisor to come to

Ann’s bedside in the hospital so that Ann could sign change of beneficiary forms naming

Sean as 75% beneficiary and Travis as 25% beneficiary of her Prudential and Lincoln

Financial accounts. At the time the financial advisor presented the documents for Ann

to sign, he was aware of Dr. Russell’s letter finding Ann incompetent, and he did not

disagree with that finding.

        The day after Ann signed the change of beneficiary forms on her Prudential and

Lincoln National accounts, a doctor at the hospital found Ann’s speech was

“unintelligible at times,” that she “had difficulty recalling the date” and that barriers to her

discharge from the hospital included her “[d]ecreased insight, cognitive impairment,

[and] risk for falls.” Shortly thereafter, on March 5, 2017, Dr. Patrick J. Murray, a

psychologist, evaluated Ann and noted that she “presented with depressive symptoms,

                                               4
history of treatment for bipolar disorder, cognitive deficits, mild anxiety, and adjustment

concerns.” Dr. Murray further observed that she had confusion and memory loss and

that a mental examination showed that she had “limited to poor insight.”

       On April 3, 2017, Randy filed an application for appointment of a guardian and

conservator for Ann. In his petition, Randy alleged that a guardianship was necessary

because Ann was unable to receive and evaluate information or communicate decisions

to such an extent that she lacked the capacity to meet essential requirements for food,

clothing, shelter, safety, or other care such that serious physical injury, illness, or

disease was likely to occur because of her physical or mental condition, which he

described in detail. Randy further alleged that a conservatorship was necessary

because Ann was unable to receive and evaluate information or to communicate

decision to such an extent that she lacked the ability to manage her financial resources

because of her physical or mental condition. Ann, who was represented by counsel,

contested the guardianship and conservatorship.

       On May 18, 2017, while Ann was a patient at Liberty Health and Wellness

nursing home, she signed a second amendment to her trust and a new will, both of

which made Sean a 75% beneficiary and Travis a 25% beneficiary of her assets. That

same day, Dr. Dennis Drews, Ann’s physician who had been treating her since March

2017, examined her and determined that she was suffering from dementia and, likely,

Alzheimer’s disease. Ann was taking medication for dementia, along with medications

for Parkinson’s disease, delusions, hallucinations, and bipolar disorder. Dr. Drews

noted that Ann was unable to answer questions and was incapable of making medical

and financial decisions. In Dr. Drews’s medical opinion, Ann did not have the capacity



                                              5
to be able to read, appreciate, and understand the second amendment to her trust and

the new will she signed that day.

      Stephanie Ramirez, Ann’s speech therapist, provided cognitive and

speech/language therapy to Ann and interacted regularly with her between May 9,

2017, and May 22, 2017. When Ramirez initially examined Ann on May 9, 2017, she

found Ann’s cognition to be severely impaired. On May 18, 2017, the day Ann signed

the second amendment to her trust and the new will, Ramirez noted that Ann’s attention

span was less than one minute and that she was “very distracted.” Ramirez ultimately

discharged Ann from therapy on May 22, 2017, due to Ann’s non-compliance,

decreased participation, and poor progress with the skilled therapy program. In

Ramirez’s “Analysis of Functional Outcome/Clinical Impression,” she stated:

      [Ann] continues to demonstrate poor judgment and limited insight into
      disease process. She often closes eyes throughout treatment session
      and requires up to 20 redirections throughout the session. She continues
      to present with severe cognitive deficits characterized by decreased
      memory. Poor sustained attention. Decreased problem-solving and
      variable levels of orientation alertness. No carryover of learning noted.

In Ramirez’s opinion, over the course of the two weeks that she treated Ann, Ann

demonstrated severe cognitive decline.

      Meanwhile, in the guardianship and conservatorship proceeding, Ann’s counsel

and Randy’s counsel entered into a stipulation on July 21, 2017, agreeing that an

emergency existed that required the appointment of a temporary guardian and

conservator. The parties stipulated to the court’s appointing the Clay County Public

Administrator as Ann’s temporary guardian and conservator. Three days later, on July

24, 2017, the court entered a judgment finding that Ann was totally incapacitated and



                                           6
totally disabled and appointing the Clay County Public Administrator as Ann’s guardian

and conservator.

       Ann died on July 28, 2017. On August 8, 2017, Ann’s new will was ordered

admitted to probate as her will. Two weeks later, Respondents filed a petition to contest

Ann’s new will, to admit her original will, and to set aside the changes to her beneficiary

designations on her Prudential and Lincoln Financial accounts on the basis that Ann

was not legally competent to execute the new will or to change the beneficiaries on her

accounts. Respondents also filed a petition to register the original Ann Netherton Trust,

to declare Respondents to be the successor trustees and sole beneficiaries of that trust,

and to declare that the first and second amendments to the trust were null and void

because they were executed after Ann was declared mentally incompetent. The court

consolidated the two cases. Prior to trial, Travis, who was originally named as a plaintiff

along with Respondents, was realigned as a party defendant, with his own separate

counsel. Although Travis was a party defendant, he agreed with Respondents that the

first and second amendments to Ann’s trust, the new will, and the changes to her

beneficiary designations were null and void due to Ann’s incompetency.

       The cases proceeded to a jury trial. Midway through the trial, Respondents

moved to amend their pleadings to conform to the evidence to include a claim that the

instruments at issue were procured as a result of undue influence. Following the

presentation of evidence, the court determined that the fact issues of Ann’s capacity

and any undue influence would be submitted to the jury. The jury reached verdicts

finding that the first and second amendments were not valid amendments to Ann’s trust,

the new will was not Ann’s last will and testament, and the change of beneficiary forms



                                             7
for the Prudential and Lincoln National accounts were not valid contracts. The court

accepted the jury’s verdicts. The court then entered a judgment declaring that the first

and second amendments to Ann’s trust, the new will, and the change of beneficiary

forms were null and void because they were executed at a time when Ann lacked

sufficient mental capacity and were procured as a result of Sean’s undue influence.

The court registered Ann’s original trust as a valid trust indenture, vacated the August 8,

2017 order admitting the new will to probate and entered a separate order of probate for

her original will, and declared that the Prudential and Lincoln National contracts were

restored to the beneficiary designations as existed on the day before the invalid change

of beneficiary forms were signed and that any withdrawals or transfers of funds to Sean

pursuant to the change of beneficiary forms were void and invalid. Sean appeals.

                                         ANALYSIS

       Sean’s Points I and II concern the timeliness of the filing of his notice of appeal,

an issue this court directed the parties to address in their briefs. The circuit court

entered its judgment on December 4, 2018. Sean filed his motion for new trial on

December 10, 2018, which was timely because it was filed within thirty days after the

judgment was entered. Rule 78.04. The docket sheet on Case.net indicates that the

court entered an order denying Sean’s motion for new trial on January 18, 2019, which

made the court’s judgment final that day under Rule 81.05(a)(2)(A). Thus, pursuant to

Rule 81.04(a), Sean’s notice of appeal was due ten days later, which was January 28,

2019. Sean did not file his notice of appeal until February 25, 2019.

       Case.net’s eNotice History indicates, however, that the court did not notify the

parties of its January 18, 2019 order denying Sean’s motion for new trial until February



                                              8
20, 2019. Rule 74.03 provides that, when the court fails to provide notice of the entry of

an order or judgment, “the order or judgment shall be set aside for good cause shown

upon written motion filed within six months from the entry of the order or judgment.”

Here, no party filed a written motion asserting good cause to set aside the January 18,

2019 order denying Sean’s motion for new trial.

          Instead, on February 21, 2019, the court sua sponte set aside its January 18,

2019 order and entered a new order denying the motion for new trial. Rule 74.06(a)

allows the court to correct, at any time of its own initiative, “[c]lerical mistakes in

judgments, orders, or other parts of the record and errors therein arising from oversight

or omission.”2 The court’s failure to provide notice of the entry of its January 18, 2019

order was a clerical mistake that the court properly corrected pursuant to Rule 74.06(a)

when it sua sponte set aside that order and entered its February 21, 2019 order. See

McGuire v. Kenoma, LLC, 447 S.W.3d 659, 663 (Mo. banc 2014) (noting that the court

retains jurisdiction over its records to ensure their accuracy and that the correction of a

clerical mistake “cannot be used to add anything to the judgment that is not in some

way already reflected in the record”). Therefore, the February 21, 2019 order was

binding and enforceable, and Sean’s notice of appeal, filed within ten days of the entry

of that order, was timely filed.3

          In Point III, Sean asserts the circuit court erred in sustaining Respondents’

objection to his attempt to refer, during closing arguments, to a rejected settlement offer

that Respondents’ counsel made to Ann’s counsel in the guardianship and


2   Rule 74.03 expressly states that it does not “preclude relief under Rule 74.06.”
3 Because we find that the notice of appeal in this case was timely filed, we deny Sean’s motion to file a
late notice of appeal in case number WD82598.

                                                       9
conservatorship proceeding. Before trial, the court granted Respondents’ motion in

limine to exclude evidence of settlement-related discussions between attorneys or

parties in the guardianship and conservatorship case. During the trial, however,

Travis’s counsel offered into evidence Ann’s counsel’s case file, Exhibit 912. This

exhibit included an email from Respondents’ counsel to Ann’s counsel, sent on May 9,

2017, offering to settle the guardianship and conservatorship case and a rent and

possession case that Respondents had filed against Sean.4 The terms of the

settlement offer were that (1) Ann would agree to withdraw her opposition to the

application for appointment of guardian and conservator and Respondents would agree

to her selecting the guardian and conservator; (2) Ann would “reverse” any

amendments to the Ann Netherton Trust and would “reverse” any changes to

beneficiary designations that occurred after August 23, 2016; and (3) Respondents

would dismiss their pending petition for rent and possession against Sean, allow him to

reside in the residence through June 30, 2017, and forego any claims they had to past

due rent and expenses. Respondents did not object to the admission of any of Exhibit

912, including the settlement offer.5

        During closing argument, Sean’s counsel prefaced his comments about the

settlement offer by telling the jury, “You’re about to hear a bombshell.” He then said:

                If you write down anything in your notes, write this down. Exhibit
        #912, bates-stamped as [Travis’s counsel] called it, 88 through 89. This
        was introduced into evidence by them. It came in without objection, and it
        tells you everything you need to know.


4 The record indicates that, at the time, Sean was living in one of the rental properties owned by Ann’s
trust and was approximately $8,000 behind in his rent payments.
5Respondents assert in their brief that the settlement offer in Exhibit 912 was “inadvertently admitted, as
two pages out of hundreds of other documents contained in [Ann’s counsel]’s legal file.”

                                                    10
             This is a letter from [Respondents’ counsel] dated May 9, 2017.
       Now remember, they’re telling you all week, in May she was not
       competent. May 9 –

       At this point, Respondents’ counsel objected, asserting that Sean’s counsel was

“just about to tell the jury again about my letter that includes a settlement offer that we

had; that was the date. And he’s trying to do it again. And you’ve already told him not

[to] address it.” In response, Sean’s counsel told the court, “It’s admitted into evidence

by them without objection, Your Honor. Your Motion in Limine – they admitted it into

evidence. It came in without objection. It’s in evidence, Your Honor. I didn’t violate

your motion. They introduced it. I didn’t offer it.” The court sustained Respondents’

objection and directed the jury to “disregard that last comment.”

       On appeal, Sean contends the court erred in sustaining Respondents’ objection

to his argument and directing the jury to disregard his counsel’s comments on the

settlement offer. He argues that, because the settlement offer was admitted into

evidence without objection, he should have been allowed to use it “for any purpose.”

       The circuit court has broad discretion in ruling on the propriety of closing

argument. Dieser v. St. Anthony’s Med. Ctr., 498 S.W.3d 419, 438 (Mo. banc 2016).

We will reverse only if we find an abuse of discretion. Id. An abuse of discretion occurs

if the ruling “‘is clearly against the logic of the circumstances then before the court and

is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack

of careful, deliberate consideration.’” State ex rel. Mo. Highways & Transp. Comm’n v.

Boer, 495 S.W.3d 765, 769 (Mo. App. 2016) (quoting Lozano v. BNSF Ry. Co., 421

S.W.3d 448, 451 (Mo. banc 2014)).




                                             11
       “The permissible field of closing argument is a broad one.” Whisenand v.

McCord, 996 S.W.2d 528, 531 (Mo. App. 1999) (citation omitted). “[A]s long as counsel

confines himself to the evidence and does not go beyond the issues and urge

prejudicial matters or urge a claim or defense which the evidence does not justify, he is

to be given wide latitude in his comments.” Id. (citation omitted).

       Sean asserts that he should have been allowed to argue that Respondents’

request in the settlement offer that Ann “reverse” any amendments to the trust and any

changes to beneficiary designations that occurred after August 23, 2016, constituted an

admission by Respondents that Ann was competent to execute estate planning

documents in May 2017 and, therefore, she was competent to execute the first and

second amendments to her trust, her new will, and the change of beneficiary forms that

she signed in February and May 2017.

       A settlement offer is not an admission. City of Kansas City v. N.Y.-Kan. Bldg.

Assocs., L.P., 96 S.W.3d 846, 862 (Mo. App. 2002). This is because “[p]ublic policy

favors the settlement of disputed claims out of court and offers of settlement are treated

as offers to obtain peace rather than an admission . . . to be held against the offer[o]r.”

Id. (citation omitted). Thus, Respondents’ settlement offer in the guardianship and

conservatorship proceeding did not constitute a legal admission of the contested issue

in that case, which was Ann’s competency – the same contested issue in this case.

       Moreover, Sean’s proposed argument, which appears to be that one of the terms

of the offer constituted an admission of Ann’s competency, was contradicted by the

language of the settlement offer as a whole. The first term of the settlement offer was

that Ann withdraw her opposition to the appointment of a guardian and conservator.



                                             12
Given that the settlement offer was conditioned upon the appointment of a guardian and

conservator for Ann, any argument by Sean that Respondents actually admitted in that

same offer that Ann was competent was at best confusing, if not illogical and unjustified,

in the context of the settlement offer in its entirety.

       We recognize the general rule that counsel’s wide latitude to suggest inferences

in closing arguments includes even those inferences that are “‘illogical or erroneous.’”

Nelson v. Waxman, 9 S.W.3d 601, 606 (Mo. banc 2000) (quoting Moore v. Mo. Pac.

R.R. Co., 825 S.W.2d 839, 844 (Mo. banc 1992)). The rationale for this rule is that, “if

this court should reverse every case where a lawyer made an unsound argument or

drew an unwarranted conclusion from given premises, few cases would stand the test.”

Atkinson v. United Rys. Co., 228 S.W. 483, 484 (Mo. 1921). Simply because the circuit

court’s allowing an illogical or erroneous argument does not necessarily constitute

reversible error, however, does not conversely mean that the court’s refusal to allow

such argument constitutes an abuse of the court’s broad discretion in determining the

propriety of closing arguments. Under the circumstances, we do not find that the circuit

court’s refusal to allow Sean to make his proposed argument was “‘so unreasonable

and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate

consideration.’” Boer, 495 S.W.3d at 769 (quoting Lozano, 421 S.W.3d at 451). Point

III is denied.

       In Point IV, Sean contends the circuit court erred in giving jury instructions that

erroneously placed upon him the burden of proving, by clear and convincing evidence,

Ann’s mental capacity when she executed the trust amendments and the change of

beneficiary forms. Whether a jury was instructed properly is an issue of law that we



                                               13
review de novo. Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009). “Reversal

for instructional error is appropriate when the instruction misdirected, misled, or

confused the jury and resulted in prejudice.” Id. at 66.

       Instructions 8 and 24, proffered by Respondents, instructed the jury as to the

burden of proof regarding Respondents’ challenge to the validity of the first and second

amendments to Ann’s trust. Instruction 8, which concerned the first amendment to the

trust, provided:

             In these instructions, you are told that your verdict depends on
       whether or not you believe certain propositions of fact submitted to you.
       The burden is upon the party who relies upon any such proposition to
       cause you to believe by clear and convincing evidence that such
       proposition is true.

              The burden is upon [Sean], proponent, to cause you to believe that
       the First Amendment to the Ann Netherton Trust dated February 17, 2017,
       is an amendment to the original trust agreement of Osta Ann Netherton.

              The burden is upon [Respondents], contestants, to cause you to
       believe their claim of undue influence as submitted in Instruction number
       11.

              In determining whether or not you believe any proposition, you
       must consider only the evidence and the reasonable inferences derived
       from the evidence.

               If the evidence in the case does not cause you to believe a
       particular proposition submitted, then you cannot return a verdict requiring
       belief of that proposition.

Instruction 24, which concerned the second amendment to the trust, was identical to

this instruction except it substituted “Second Amendment” in place of “First Amendment”

and “May 18, 2017” in place of “February 17, 2017” in the second paragraph, and it



                                             14
referenced a different instruction number for the second amendment’s corresponding

undue influence claim in the third paragraph.

      Similarly, Instruction 14, also proffered by Respondents, instructed the jury as to

the burden of proof regarding Respondents’ challenge to the validity of the change of

beneficiary forms. Instruction 14 stated:

            In these instructions, you are told that your verdict depends on
      whether or not you believe certain propositions of fact submitted to you.
      The burden is upon the party who relies upon any such proposition to
      cause you to believe by clear and convincing evidence that such
      proposition is true.

             The burden is upon [Sean], proponent, to cause you to believe that
      the Beneficiary Forms for Contracts with Prudential and Lincoln National
      dated February 27, 2017 are Change of Beneficiary Forms for Contracts
      with Prudential and Lincoln National entered into by Osta Ann Netherton
      and Prudential and Lincoln National.

             The burden is upon [Respondents], contestants, to cause you to
      believe their claim of undue influence as submitted in instruction number
      17.

             In determining whether or not you believe any proposition, you
      must consider only the evidence and the reasonable inferences derived
      from the evidence.

              If the evidence in the case does not cause you to believe a
      particular proposition submitted, then you cannot return a verdict requiring
      belief of that proposition.

      Sean argues that these instructions were erroneous because he had no burden

to prove anything. He asserts that the court should have instead given his proposed

instructions, which instructed the jury that only Respondents had the burden of proving,

by clear and convincing evidence, that the first and second amendments to the trust



                                            15
were not valid amendments to Ann’s original trust and that Ann lacked the sufficient

mental capacity to execute the change of beneficiary forms.

       Sean’s argument fails to recognize that, in cases challenging changes to estate

planning documents, both parties bear burdens of proving different propositions. See

Rouner v. Wise, 446 S.W.3d 242 (Mo. banc 2014) and Ivie v. Smith, 439 S.W.3d 189

(Mo. banc 2014). Specifically, “[i]n a suit challenging the validity of a trust due to lack of

mental capacity to execute such a document, the proponents of the document have the

burden to establish a prima facie case of due execution and of sound mind of the

person executing the trust at the time it was executed.” Cima v. Rhoades, 416 S.W.3d

320, 323-24 (Mo. App. 2013). In other words, the “party seeking to establish an original

or amended trust . . . must establish that the settlor acted with adequate capacity.”

Rouner, 446 S.W.3d at 251 n.7. “The capacity required to create, amend, revoke, or

add property to a revocable trust . . . is the same as that required to make a will.” §

456.6-601, RSMo 2016. The evidence relied upon to establish the capacity to execute

a valid trust or trust amendment must be clear and convincing. Rouner, 446 S.W.3d at

252. Once the proponent of the trust document makes a prima facie showing, “the

contestant must adduce substantial evidence that the settlor lacked mental capacity to

execute the trust.” Cima, 416 S.W.3d at 324. The burden of proving mental capacity

remains with the proponents throughout the trial, however. See Hall v. Mercantile Trust

Co., 59 S.W.2d 664, 671-72 (Mo. 1933).

       Likewise, a suit challenging the validity of a beneficiary designation places similar

burdens on both parties. The creation of a beneficiary designation is governed by

contract law. Ivie, 439 S.W.3d at 204. “Under the common law, a contract is deemed



                                             16
void if a party lacks the requisite mental capacity at the time of contracting – meaning

mental capacity must be present for a contract to exist at all.” Id. Hence, because

“[m]ental capacity is required to make a contract[,] . . . mental capacity is required to

make a beneficiary designation.” Id. The capacity required to make a beneficiary

designation is contractual capacity, which is a higher standard than testamentary

capacity. Id. at 205. Pursuant to contract law, the party requesting enforcement of a

contract has the burden of proving the existence of a valid contract by clear and

convincing evidence. Webb v. Webb, 498 S.W.2d 757, 758 (Mo. 1973); J.H. v. Brown,

331 S.W.3d 692, 699 (Mo. App. 2011). Therefore, applying these contract principles to

challenges to a beneficiary designation, the party requesting the enforcement of the

beneficiary designation has the burden of establishing, by clear and convincing

evidence, that the person who made the designation had the contractual capacity to do

so. Once the proponent makes a prima facie showing, the contestant then has the

burden of proving that the person who made the designation lacked the requisite

capacity. See Ivie, 439 S.W.3d at 199 n.10.

       Instructions 8, 24, and 14 required Sean to prove the validity of the trust

amendments and the change to beneficiary forms – including Ann’s capacity to execute

them – by clear and convincing evidence, and they required Respondents to prove their

claim of undue influence in the execution of those instruments by clear and convincing

evidence.6 Therefore, the instructions correctly ascribed the burdens of proof applicable



6 Because Respondents offered these instructions, we presume, without deciding, that Respondents are
correct that they bore the burden of proving their claim of undue influence by clear and convincing
evidence. See Ivie, 439 S.W.3d at 199 n.10.



                                                 17
to both parties. Sean’s proposed instructions, which did not place upon him any burden

to establish the validity of the documents at issue, would have misstated the law. The

circuit court did not err in instructing the jury. Point IV is denied.

                                         CONCLUSION

       The judgment is affirmed.



                                            _____________________________
                                            Lisa White Hardwick, Judge
All Concur.




                                              18
