IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

THOMAS R. WINSTON, )

)

Appellant, ) WD76620

)

vs. ) Opinion filed: September 2, 2014

)

DAVID WINSTON and )

MICHELLE WINSTON, )

)

Respondents. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI

THE HONORABLE KATHLEEN A. FORSYTH, JUDGE

Before Division Two: Victor C. Howard, Presiding Judge, 

Alok Ahuja, Judge and Mark D. Pfeiffer, Judge

Dr. Thomas R. Winston appeals the trial court‟s judgment that ordered, among other 

things, that distributions be made to his children from certain trusts created by his father Dr. 

Bernard Winston, that certain trusts be amended to remove his power to consent to all 

distributions to his children, and that he pay $109,117.95 of his children‟s attorney fees. The 

judgment is affirmed in part and reversed in part, and the case is remanded for proceedings in 

accordance with this opinion.
2

Factual and Procedural Background

The Trusts

Dr. Bernard Winston created numerous trusts during his lifetime and made various 

amendments thereto before his death in 1996. An introduction to these trusts is vital to 

understanding the issues in this case. 

In 1989, Dr. Bernard Winston created an irrevocable trust (“1989 Trust”) naming United 

Missouri Bank of Kansas City (“UMB”) as the sole trustee. 

In 1990, Dr. Bernard Winston executed a trust agreement which created a generation 

skipping residuary trust (“GSRT”) and a separate residuary trust (collectively “1990 Trusts”) and 

named himself as the trustee and appointed UMB as the successor trustee. Subsequent to the 

creation of the 1990 Trusts, Dr. Bernard Winston executed seven amendments thereto. Notably, 

the fifth amendment stated that all prior amendments were superseded by its provisions and the 

sixth amendment further confirmed that all amendments except the fifth amendment were 

revoked. In the fifth amendment, Dr. Bernard Winston created the position of “Investment 

Trustee”:

Notwithstanding any other provision of this Trust Agreement, all actions and 

decisions of the Trustee relating to investment or reinvestment of the trust estate 

shall be exercised only by the Investment Trustee appointed under this Paragraph 

A-1. Any Trustee (including the corporate Trustee) who is not acting as the 

Investment Trustee under this Paragraph A-1 shall not have any responsibility for, 

nor the authority to join in any decision regarding, the making or retaining of 

investments of the trust estate. However, the Trustee (other than the Investment 

Trustee) shall take all reasonable actions to ensure that the Investment Trustee 

does not violate any provisions of this Trust Agreement regarding the permissible 

investments of the trust estate.

Dr. Bernard further named himself as the Investment Trustee of the 1990 Trusts and named Dr. 

Thomas Winston as the successor Investment Trustee, providing that “if [Dr. Thomas Winston]
3

is unable or unwilling to continue to act as such, the Trustee(s) then acting shall become the 

Investment Trustee, and the provisions of this Paragraph A-1 shall no longer apply.”

The 1990 Trusts give the trustee discretion to make distributions to Dr. Thomas Winston 

or his descendants who are under age 18 as necessary for health, maintenance, and support, as 

well as providing for $17,500 to each descendant at the ages of 16 and 19 for the purchase of a 

new motor vehicle, $9,500 per year for living expenses for Dr. Thomas Winston‟s children who 

are “qualifying students,” and amounts necessary to assist said children with the reasonable costs 

associated with becoming a “qualifying student.” The 1990 Trusts permitted Dr. Thomas 

Winston to disapprove or veto distributions to his children during his lifetime, with provisions 

following each potential distribution to the children mandating that no distributions be made to 

them without his consent. The consent portion at the end of the income distribution provision 

reads:

Provided, however, during Thomas‟ life, no distribution shall be made to or for 

the benefit of a descendant of Thomas without the consent of Thomas (or by his 

legal representative during any period Thomas is under a legal disability). 

Notwithstanding the above provisions, Thomas‟ consent to any distribution to be 

made to one of his descendants may not be given more than sixty (60) days in 

advance, and shall be deemed valid only to the extent it is given freely and 

voluntarily.

The consent portion of the provision titled “Distributions from GSRT to or for the Benefit of 

Thomas‟ Children” reads:

Notwithstanding anything set forth in the preceding paragraph, during Thomas‟ 

life, no distribution shall be made to a child of Thomas under this Subparagraph 

A(3) without the specific approval of Thomas (or without the approval of 

Thomas‟ legal representative during any period Thomas is under a legal 

disability). Notwithstanding the above provisions, Thomas‟ consent to any 

distribution to be made to one of his descendants may not be given more than 

sixty (60) days in advance, and shall be deemed valid only to the extent it is given 

freely and voluntarily.
4

Additionally, there is a no-contest clause applicable to the 1990 Trusts, which reads: 

If any person who has been given an interest in a trust estate under this Trust 

Agreement institutes or joins in (except as a party defendant) any proceeding to 

contest the validity of this Trust Agreement or any of its provisions, all benefits 

provided for that person shall be revoked[.]

In 1993, Dr. Bernard Winston executed another trust agreement that created another 

irrevocable trust (“1993 Trust”). The 1993 Trust named UMB and Dr. Thomas Winston as cotrustees, and was for the benefit of Dr. Thomas Winston and his children, having provisions for 

distributions similar to those in the 1990 Trusts, but providing that such distributions from the 

1990 Trusts would reduce the distributions from the 1993 Trust. The 1993 Trust also contained 

similar consent provisions as the 1990 Trusts requiring Dr. Thomas Winston‟s consent for all 

distributions to his children. The 1993 Trust did not contain a no-contest provision.

Dr. Bernard Winston also created a number of trusts in which he placed numerous 

paintings, naming Dr. Thomas Winston as the trustee and Dr. Thomas Winston‟s children as the 

beneficiaries, the paintings to be held for them until they reach the age of thirty.

Litigation

Dr. Bernard Winston died in 1996, at which time Dr. Thomas Winston had two children 

(“the twins”) who were six years old. UMB became the general trustee of the 1990 Trusts and 

Dr. Thomas Winston became the investment trustee. In July of 2010, Dr. Thomas Winston filed 

suit against UMB alleging breach of fiduciary duty and requesting an accounting and turnover of 

property. The trial of these claims has not yet occurred and the issues involved are not a part of 

this appeal. 

In August of 2010 UMB filed a third party petition against the twins requesting approval 

of its resignation as corporate trustee, appointment of a successor corporate trustee, approval of a 

final accounting of the trust, and a release of trustee. The twins filed an answer, as well as a 
5

counter-petition and then an amended counter-petition against Dr. Thomas Winston, in which 

they alleged breach of fiduciary duty and trust and violations of Uniform Transfers to Minor Act 

and/or conversion, and requested removal of trustee and reformation of trust. With the first two

counts, the twins requested punitive damages and attorney‟s fees. The parties filed crossmotions for summary judgment. Before any rulings on the motions, the twins dismissed with

prejudice their claim of violation of the Uniform Transfers to Minor Act and/or conversion. The 

trial court ruled on the summary judgment motions orally, on the first day of trial, granting Dr. 

Thomas Winston‟s motion for summary judgment as to any issues regarding the 1989 Trust and

denying all other summary judgment motions.

The Judgment

With regard to the painting trusts, the trial court held that Dr. Thomas Winston had not 

breached his duty to safeguard the trust assets and that he did breach a duty to account to the 

twins about the location of the paintings, but that they had not been damaged. The court denied 

the twins‟ requests that Dr. Thomas Winston be removed as trustee, and that the painting trusts 

be reformed. The court ordered that Dr. Thomas Winston have the paintings appraised to ensure 

that they have sufficient insurance coverage, with the appraisal expense to be borne by the twins.

With regard to the 1990 Trusts, the court concluded that the twins had not violated the 

no-contest clause and that Dr. Thomas Winston had breached a fiduciary duty to the twins by 

failing to consider their best interests in determining whether or not to consent to distributions. 

The court declined to remove Dr. Thomas Winston as investment trustee, and it declined the 

twins‟ request to split the trust into thirds. The court also noted that any relief requested and not 

addressed was denied, which would include the twins‟ request to remove Dr. Winston‟s power of 

appointment with regard to certain assets in the residuary trust. However, the court reformed the 
6

1990 Trust Agreement to remove Dr. Thomas Winston‟s power to consent to distributions to the 

twins. The court also ordered the corporate trustee to make specific distributions to the twins 

from the 1990 Trusts for automobile and educational expenses.

As to the 1993 Trust, the trial court removed Dr. Thomas Winston‟s consent power from 

the trust agreement. The court held that Dr. Thomas Winston did not breach a fiduciary duty to 

make distributions from the 1993 Trust, in that the 1990 Trusts contain sufficient funds. The 

trial court denied the twins‟ request for punitive damages, stating that it could not “discount the 

sincerity of Thomas‟s belief” that he had an absolute right to authorize or refuse distributions 

from the trusts. However, the court held that Dr. Winston should have to pay $109,117.95 of the 

twins‟ attorney‟s fees personally, based on the court‟s conclusion that he breached a fiduciary 

duty.

The Appeal

Dr. Thomas Winston does not appeal the trial court‟s rulings regarding the 1989 Trust or 

the Painting Trusts. All issues on appeal relate to the 1990 Trusts, the 1993 Trust, and the trial 

court‟s award of attorney fees. Dr. Thomas Winston specifically challenges the trial court‟s 

ruling that the corporate trustee make distributions from the 1990 Trusts to the twins for 

automobile and educational expenses, the trial court‟s amendment of the 1990 Trust Agreement 

and the 1993 Trust Agreement removing Dr. Thomas Winston‟s power to consent to all 

distributions to his descendants, and the trial court‟s award of $109,117.95 in attorney fees to the 

twins to be paid by Dr. Thomas Winston personally. 

These challenges are based on the four arguments raised in Dr. Thomas Winston‟s 

appeal. First he argues the twins violated the no contest clause of the 1990 Trusts by filing their 

counter petition in this case and requesting affirmative relief in the form of removing him as 
7

trustee; removing his power of consent; either reformation, modification, or termination of the 

trust; and severing of the trust into three separate ones for each beneficiary. Dr. Thomas 

Winston also argues that the trial court erred in its legal conclusions that Dr. Thomas Winston‟s 

consent powers obligated him to act in the twins‟ best interests. Dr. Thomas Winston contends 

that the trial court erred in its legal conclusion that there was clear and convincing evidence in 

the record that circumstances changed such that the trusts must be reformed to effectuate Dr. 

Bernard Winston‟s intent. Finally, Dr. Thomas Winston asserts that the trial court‟s award of 

attorney‟s fees to the twins was erroneous because it was based on their prevailing on most 

issues, and the trial court erred in ruling in the twins‟ favor on those issues (no contest clause, 

breach of fiduciary duty, modification); and argues in the alternative that if this Court finds the 

trial court did not err in ruling in the twins‟ favor on the particular issues he challenges on 

appeal, then the award of attorney‟s fees still must be remanded “for a recalculation of the 

attorney‟s fees, with only fees for work done on successful claims chargeable to Dr. [Thomas] 

Winston.”

Standard of Review

In a bench-tried case, the judgment of the trial court will be affirmed on appeal unless 

there is no substantial evidence to support it, it is against the weight of the evidence, or it 

erroneously declares or applies the law. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012);

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Claims that there is no substantial 

evidence to support the judgment or that the judgment is against the weight of the evidence 

necessarily involve review of the trial court‟s factual determinations. Pearson, 367 S.W.3d at 

43. A reviewing court will overturn a trial court‟s judgment under these fact-based standards of 

review only when the court has a firm belief that the judgment is wrong. Id. On the other hand, 
8

a claim that the judgment erroneously declares or applies the law involves review of the 

propriety of the trial court‟s construction and application of the law. Id. 

An appellate court reviews questions of law de novo without deference to the trial court‟s 

conclusions. Id. at 43-44. In reviewing questions of fact, the appellate court defers to the trial 

court‟s assessment of the evidence if any facts relevant to an issue are contested. Id. at 44. This 

is so because the trial court is in a better position not only to judge the credibility of witnesses 

directly but also their sincerity and character and other trial intangibles that may not be 

completely revealed by the record. Id. When evidence is contested, a trial court is free to 

disbelieve any, all, or none of the evidence. Id. “„[T]he appellate court‟s role is not to reevaluate testimony through its own perspective.‟” Id. (quoting White v. Dir. of Revenue, 321 

S.W.3d 298, 309 (Mo. banc 2010)). 

The construction of a legal document, such as a trust, based upon its language is reviewed 

de novo. Kimberlin v. Dull, 218 S.W.3d 613, 615 (Mo. App. W.D. 2007). “Whether a fiduciary 

duty exists is a question of law, while the breach of that duty is for the trier of fact to decide.” 

Western Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012) (citing Scanwell 

Freight Express STL, Inc. v. Chan, 162 S.W.3d 477, 481 (Mo. banc 2005)).

Discussion

I. No-Contest Clause

Dr. Thomas Winston‟s initial complaint is that the twins violated the no contest clause of 

the 1990 Trusts by filing their counter petition in this case and requesting affirmative relief in the 

form of removing him as trustee; removing his power of consent; either reformation, 

modification, or termination of the trust; and severing of the trust into three separate ones for 

each beneficiary. The twins argue in response that they fit the exception in the no contest clause 
9

for those who join in a proceeding regarding the trusts as a party defendant, and their requests for 

relief in their counter petition did not “contest the validity of [the 1990 Trusts] or any of [their] 

provisions.”

The no-contest clause applicable to the 1990 Trusts reads: 

If any person who has been given an interest in a trust estate under this Trust 

Agreement institutes or joins in (except as a party defendant) any proceeding to 

contest the validity of this Trust Agreement or any of its provisions, all benefits 

provided for that person shall be revoked[.]

The twins alleged breach of fiduciary duty, breach of trust, and unforeseen circumstances in their 

counterpetition against Dr. Thomas Winston. They sought damages for Dr. Thomas Winston‟s 

breach; to have Dr. Thomas Winston removed as trustee from the trusts, to be replaced with an 

impartial trustee; to have Dr. Thomas Winston‟s discretionary power over distributions to the 

twins removed; punitive damages; costs; attorney fees; reformation, modification, or termination 

of the trusts and distribution of the trust property into thirds to be placed in three new trusts one 

for each beneficiary, or in the alternative, that the court partition and or modify the trusts as it 

saw fit given the unforeseen circumstances.

Analysis of the meaning of a trust provision, such as the no contest provision of the 1990 

Trusts, is governed by the primary rule of trust construction: the settlor‟s intent at the time of the 

creation of the trust controls and is to be ascertained primarily from the trust instrument as a 

whole. Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434, 443 (Mo. App. W.D. 2004). This 

Court specified in Chaney v. Cooper, 954 S.W.2d 510, 519 (Mo. App. W.D. 1997):

In reviewing the applicability of forfeiture provisions or “no-contest” clauses,

courts are to consider the facts of the particular case, and those facts are to be 

considered and applied with “a careful regard for the phrasing or language of the 

no-contest or forfeiture clause; and, having in mind that forfeitures are not 

favored by the law. A no-contest or forfeiture provision is to be enforced where it 

is clear that the trustor (or testator) intended that the conduct in question should 

forfeit a beneficiary's interest under the indenture (or will).” Cox v. Fisher, 322 
10

S.W.2d 910, 915 (Mo.1959). See also Liggett v. Liggett, 341 Mo. 213, 108 

S.W.2d 129, 134 (1937).

Here, neither the trust instrument nor the Missouri Uniform Trust Code, RSMo Chapter 

456, defines “contest” nor “validity,” thus we employ the ordinary meaning of these terms in 

analyzing Dr. Bernard Winston‟s intent in the no contest provision. Black‟s Law Dictionary 

provides three definitions of “contest,” the second of which is applicable to its use in the 1990 

Trusts: “To litigate or call into question; challenge <they want to contest the will>.” Black’s 

Law Dictionary 361 (9th ed. 2009). “Valid,” the adjective form of “validity,” is defined as 

“Legally sufficient; binding <a valid contract>.” Black’s Law Dictionary 1690 (9th ed. 2009). 

So, to call into question the legal sufficiency of the 1990 Trusts would result in the revocation of 

benefits to the contesting beneficiary. 

In the instant action, none of the allegations or relief sought in the twins‟ counterpetition 

questioned the legal sufficiency of the trusts. Rather, it implicitly acknowledged that the trusts 

were valid, but alleged circumstances that purportedly warranted some form of modification 

because those circumstances were not foreseen by the settlor when the trust was validly created, 

and were presently frustrating the settlor‟s intent as expressed in the trusts. Particularly, the 

counterpetiton acknowledges the terms it asks the court to modify. It does not call them into 

question, specifically stating: “Pursuant to the terms of the trusts, [Dr. Thomas Winston] must 

approve distributions from any of the trusts to his children made during his lifetime.” 

In Chaney v. Cooper, the appeal stemmed from a dispute over the ownership of certain 

assets, which originated from the condemnation proceeds of a family-owned farm in Missouri. 

954 S.W.2d at 513. In that case, there were two wills, executed by a husband and wife, of whom 

the husband passed first and the wife many years later. Id. The petitioners in the action had, 

among other things, objected to the probate of the wife‟s will, based upon the contention that the 
11

husband‟s will, rather than the wife‟s, controlled the property. Id. at 519. This Court found that 

the no-contest clause only pertained to the validity of the wife‟s will, not to petitioners‟ 

questioning of the construction of the husband‟s will as it pertained to the disposition of the 

property. Id. This Court therefore concluded that the respondent‟s contention that the

petitioners‟ objection to the probate of the wife‟s will was an action that fell under the in 

terrorem clause thus prohibiting the petitioners from taking under her will was without merit. Id.

at 518, 19.

Similarly, the twins‟ counterpetition in the instant case alleges, essentially, that Dr. 

Bernard Winston would never have foreseen the abuse of the twins allegedly inflicted by Dr. 

Thomas Winston, and had he foreseen it, would not have granted Dr. Thomas Winston the veto 

power as to distributions from the trusts. It concludes that because of the complete estrangement 

between Dr. Thomas Winston and the twins, it is impossible to effectuate the settlor‟s intent in 

the trusts. Simply stated, these allegations and the relief sought do not challenge the validity of 

the trusts at all. Rather, the validity of the trusts is implicitly acknowledged, and the relief 

sought is based on circumstances outside the trust instruments. As such the twins‟ action does 

not trigger the no contest clause.

II. Power of Consent/Veto Power

Dr. Thomas Winston specifies that he does not challenge the trial court‟s factual findings 

that Dr. Thomas Winston was biased against the twins based on hostility between them and that 

he failed to determine whether authorizing distributions would be in the twins‟ best interest. He 

argues, rather, that the trial court erred in its legal conclusions based on these findings that (1) 

Dr. Thomas Winston‟s consent powers obligated him to act in the twins‟ best interests, and (2) 
12

there was clear and convincing evidence in the record that circumstances changed such that the 

trusts must be reformed to effectuate Dr. Bernard Winston‟s intent. 

The trial court made a factual finding that Dr. Bernard Winston gave Dr. Thomas 

Winston the power to grant or withhold consent to distributions to the twins “with the 

expectation that [Dr. Thomas Winston] would act in their best interests[,]” and that “[t]here 

[was] no evidence that [Dr. Bernard Winston] intended that [Dr. Thomas Winston‟s] consent 

power be used as an instrument of control or punishment.” The trial court made the legal 

conclusion that “[t]he terms of the 1990 Trust Agreement with respect to the trustees‟ fiduciary 

duties mirrors Missouri law and confirms that [Dr. Bernard Winston‟s] intent and the law are 

consistent. Thus [Dr. Thomas Winston‟s] consent powers with respect to distributions to the 

Twins are not absolute and are constrained by fiduciary principles.”

The intention and meaning of the settlor of a trust is to be determined by what he said in 

his trust, and not by attempting “to guess what he meant or what he might have done under 

certain conditions if not expressed in his will.” See Blasdel, 141 S.W.3d at 443 (internal 

quotations omitted) (noting that “Although this and many other cases cited herein concern wills, 

Missouri courts generally use the same rules for construing both trusts and wills.). The intent of 

the testator, or in this case, the settlor, must be analyzed based upon what the trust instrument

“actually says and not by what we might imagine the testator [(or settlor)] intended to say or 

would have said if he had decided to further explain his intention.” Id.

While it is not inappropriate to resort to outside evidence of surrounding 

circumstances to identify the beneficiaries, to explain their relationship to the 

testators, or to show the nature and extent of the testators' holdings, even when 

such explanatory material has been obtained, we must still look primarily to the 

language of the will.

Id. (internal citation omitted).
13

Furthermore, it is well established that

absent any ambiguity in the terms of a legal instrument, the intent of its maker, 

including the intent of a testator or the settlor of a testamentary or inter vivos 

trust, is to be ascertained from the four corners of the instrument without resort to 

parol evidence as to that intent . . . . Where the language used is clear and of 

well-defined force and meaning, it must stand as written and extrinsic evidence of 

what was intended in fact cannot be adduced to qualify, explain, enlarge, or 

contradict the language . . . . [E]xtrinsic evidence, including the grantor's own 

statements, regarding the grantor's intentions is normally inadmissible. [T]he 

intentions of the testator must be gleaned from the written unambiguous will, not 

from what the testator or the will's scrivener, after execution of the instrument, 

contrarily declared, either orally or in writing, to be testator's intentions or the 

meaning of provisions in the will.

Id. at 444 (internal citations and quotations omitted).

The trial court‟s conclusion that the veto power Dr. Bernard Winston gave Dr. Thomas 

Winston over distributions to the twins carried with it fiduciary limitations appears to be based 

upon language from the third amendment to the 1990 Trusts, which was superseded by the fifth 

amendment, and revoked in the sixth amendment. The trial court‟s reliance on language from a 

revoked amendment is erroneous. The trust documents currently in effect are not ambiguous and 

clearly give Dr. Thomas Winston power to give or withhold consent to any distributions to the 

twins with no criteria for or limitations on that consent. 

The 1990 Trusts contain many indications that Dr. Thomas Winston‟s consent power 

over distributions to the twins is separate from his limited duties and responsibilities as 

investment trustee, as well as that the consent power is absolute. 

First, the trust refers to Dr. Thomas Winston as “Thomas” when giving him consent 

power and as a beneficiary in most every reference to him in the trust. On the other hand, the 

provision creating the position of Investment Trustee initially gives the position to Dr. Bernard 

Winston and then names as backup “THOMAS R. WINSTON.” Second, the term further 

provides that if “THOMAS R. WINSTON” is unable or unwilling to act in that capacity, the 
14

responsibility and authority of the Investment Trustee position simply revert back to the general 

trustee. In contrast, each of the provisions giving “Thomas” authority to give or withhold 

consent to distributions to the twins specify that such authority will pass to “his legal 

representative during any period Thomas is under a legal disability” rather than the authority just 

reverting to the general trustee or any other named individual. 

The Investment Trustee provision essentially just removes the “responsibility for, [and] 

the authority to join in any decision regarding, the making or retaining of investments of the trust 

estate” (emphasis added) from the general trustee, giving such responsibility and authority to the 

Investment Trustee, instructing that the general trustee “take all reasonable actions to ensure that 

the Investment Trustee does not violate any provisions of this Trust Agreement regarding the 

permissible investments of the trust estate.” (emphasis added). No responsibility or authority 

rests with the position of Investment Trustee besides that of making or retaining the investments 

of the trust estate. The Investment Trustee provision, located in Article VI of the trust, does not 

expressly nor implicitly implicate, much less limit, the consent terms of the distribution 

provisions of Article II.

The consent power given to “Thomas” (not to the Investment Trustee) is repeated 

following each provision in which there is a possible distribution to the twins. It contains no 

limitations on what basis the decision to give or withhold consent may be made. It neither 

expresses nor implies any fiduciary duty on the consent power. The consent terms do not 

mention the “Investment Trustee” or any trustee, just “Thomas.” Notably, the consent power is 

repeated at the end of distribution provisions that each begin by giving the general trustee 

direction or permission in the trustee’s sole discretion to make some distribution, and specify 

certain purposes and certain limitations for the distribution, before the possible distribution even 
15

reaching “Thomas” (not the Investment Trustee) for his free and voluntary consent. In 

introducing the consent power, the words “Provided, however” and “Notwithstanding anything 

set forth in the preceding paragraph” are used, indicating that the consent power overrides that 

which is provided in the preceding language.

For the provision regarding distributing income from the Generation-Skipping Residuary 

Trust (“GSRT”), the consent power is given in the final two sentences:

Provided, however, during Thomas‟ life, no distribution shall be made to or for 

the benefit of a descendant of Thomas without the consent of Thomas (or by his 

legal representative during any period Thomas is under a legal disability). 

Notwithstanding the above provisions, Thomas‟ consent to any distribution to be 

made to one of his descendants may not be given more than sixty (60) days in 

advance, and shall be deemed valid only to the extent it is given freely and 

voluntarily.

The consent portion of the provision titled “Distributions from GSRT to or for the Benefit of 

Thomas‟ Children” reads:

Notwithstanding anything set forth in the preceding paragraph, during Thomas‟ 

life, no distribution shall be made to a child of Thomas under this Subparagraph 

A(3) without the specific approval of Thomas (or without the approval of 

Thomas‟ legal representative during any period Thomas is under a legal 

disability). Notwithstanding the above provisions, Thomas‟ consent to any 

distribution to be made to one of his descendants may not be given more than 

sixty (60) days in advance, and shall be deemed valid only to the extent it is given 

freely and voluntarily.

The residuary trust (“RT”) provision on distribution of income allows the trustee in his 

discretion to distribute to the twins from that trust “to the extent the income and principal of the 

GSRT are insufficient” to make the distributions provided for in the GSRT for automobiles, 

college tuition, textbook costs, and qualified student living expenses, but again states, “Provided, 

however, during Thomas‟ life, no distribution shall be made to or for the benefit of a descendant 

of Thomas without the consent of Thomas (or by his legal representative during any period 

Thomas is under a legal disability).” The RT provision for distribution of principal for other 
16

reasons also specifies that “[n]otwithstanding anything set forth in this [s]ubparagraph [], during 

Thomas‟ life, no distribution shall be made to a child of Thomas under this [s]ubparagraph [] 

without the specific approval of Thomas (or without the approval of Thomas‟ legal 

representative during any period Thomas is under a legal disability).”

The 1990 Trust further limits distributions “[i]n the event Thomas and his spouse begin 

living separately as a result of marital discord.” It specifies that 

[d]uring such period, such income may be distributed only for the benefit of one 

of Thomas‟ descendants in accordance with permitted distributions to a 

“qualifying student” . . . and then only with the consent of Thomas. Thomas‟ 

consent to any such distribution to be made to one of his descendants may not be 

given more than sixty (60) days in advance, and shall be deemed valid only to the 

extent it is given freely and voluntarily.

In sum, the consent power Dr. Bernard Winston gave Dr. Thomas Winston in the 1990 

Trusts is unambiguous and clearly contains no limitations on what basis the decision to give or 

withhold consent may be made. No fiduciary duty is expressly or impliedly connected to the 

consent power. The consent terms do not mention the “Investment Trustee” but rather 

“Thomas.” The distribution provisions containing the consent power all give the general trustee 

direction or permission in the trustee’s sole discretion to make a distribution based on certain 

purposes and with certain limitations. Only after this discretion has been exercised by the trustee

in accordance with the trustee’s fiduciary duties does the possible distribution come before 

“Thomas” (not the Investment Trustee) for his free and voluntary consent. And finally, use of 

the words “Provided, however” and “Notwithstanding anything set forth in the preceding 

paragraph” indicates that the consent power overrides whatever is provided in the preceding 

language. 

Based on the foregoing, the trial court‟s conclusion that Dr. Thomas Winston‟s 

consent/veto power carried with it fiduciary responsibilities was a misapplication of law.
17

III. Hostility and Estrangement Not Unforeseen Circumstance

Dr. Winston also argues that the trial court erred in its legal conclusion that there was 

clear and convincing evidence in the record that circumstances changed such that the trusts must 

be reformed to effectuate Dr. Bernard Winston‟s intent. 

At trial it was revealed that, prior to Dr. Bernard Winston‟s death, he had a positive 

relationship with the twins. Testimony at trial also revealed that there had been significant 

hostility between Dr. Thomas Winston and the twins. Two years after the death of Dr. Bernard 

Winston, Dr. Thomas Winston and the twins‟ mother and his wife at the time, Julia Steinberg 

(formerly Julia Winston), were divorced. The relationship between the twins and Dr. Thomas 

Winston worsened with time, and at the time of trial they were completely estranged. The last 

time the twins saw Dr. Thomas Winston before the trial was eight years earlier.

In its judgment the trial court concluded that there was clear and convincing evidence that 

there had been a change of circumstances such that Dr. Bernard Winston‟s intent would be 

thwarted absent a reformation of the provisions of the 1990 Trusts “to eliminate [Dr. Thomas 

Winston‟s] participation in decisions relating to discretionary distributions to the Twins[.]”

The record, however, indicates that hostility and estrangement between family members

was not unforeseeable by Dr. Bernard Winston when he executed and amended the trust 

instruments. First, from the inception of the 1990 Trusts, Dr. Bernard Winston specifically 

provided for what should happen regarding distributions if Dr. Thomas Winston separated from 

his wife. Second, the 1990 Trusts emphatically declare that “in all events, the Grantor's son, 

DONALD S. WINSTON, M.D. and his descendants, if any, shall not receive nor be entitled to 

any distributions under this Trust Agreement[,]” evincing a clear knowledge that a father may 

have a negative or nonexistent relationship with his natural child and wish not to provide for him 
18

or her. Furthermore, as previously discussed, the consent power language makes no indication, 

express or implied, that such power is only to be exercised in the best interests of Thomas‟s 

descendants, showing that his intent was that Dr. Thomas Winston be the final arbiter of whether 

his descendants receive distributions from the trust.

Based on the foregoing, the trial court‟s conclusion that there was a change of 

circumstances requiring reformation of the 1990 Trusts to remove the consent/veto power Dr. 

Bernard Winston expressly gave to Dr. Thomas Winston in the 1990 Trusts was a misapplication 

of law.

IV. The 1993 Trust

Dr. Thomas Winston is a general trustee for the 1993 Trust. However, the 1993 Trust, is 

much like the 1990 Trusts. It contains many indications that Dr. Thomas Winston‟s consent 

power over distributions to the twins is absolute and is separate from his position as trustee and 

the duties and responsibilities of that position. 

First, the trust refers to Dr. Thomas Winston as “Thomas” when giving him consent 

power and as a beneficiary in most every reference to him in the trust. On the other hand, the 

opening paragraph creating the trust states the agreement is “between BERNARD H. 

WINSTON, M.D., of Jackson County, Missouri, as „Grantor‟, and THOMAS R. WINSTON, 

M.D., as „Trustee‟.” Second, a term called “Successor Trustees” provides that “[i]n the event 

THOMAS R. WINSTON, M.D. should fail or cease to act as Trustee for any reason, UNITED 

MISSOURI BANK OF KANSAS CITY, N.A. shall become successor trustee.” In contrast, each 

of the provisions giving “Thomas” authority to give or withhold consent to distributions to the 

twins specify that such authority will pass to “his legal representative during any period Thomas 
19

is under a legal disability” rather than the authority just reverting to the successor trustee or any 

other named individual. 

Furthermore, any provisions detailing the position, duties, or responsibilities of the 

Trustee, do not expressly nor implicitly implicate, much less limit, the consent/veto power the 

1993 Trusts gives to “Thomas”.

The consent power given to “Thomas” (not to the Investment Trustee) is repeated 

following each provision in which there is a possible distribution to the twins. It contains no 

limitations on what basis the decision to give or withhold consent may be made. It neither 

expresses nor implies any fiduciary duty on the consent power. The consent terms do not 

mention the Trustee, just “Thomas.” Notably, the consent power is repeated at the end of 

distribution provisions that each begin by giving the Trustee direction or permission in the 

trustee’s sole discretion to make some distribution, and specify certain purposes and certain 

limitations for the distribution, before the possible distribution even reaching “Thomas” (not the 

Investment Trustee) for his free and voluntary consent. In introducing the consent power, the 

words “Provided, however,” “However,” and “Notwithstanding the above provisions of this 

Paragraph” are used, indicating that the consent power overrides that which is provided in the 

preceding language.

For the provision regarding distributing income from the Residuary Trust (“RT”) portion 

of the 1993 Trust, the consent power is given in the final sentence:

Provided, however, during Thomas‟ life, no distribution shall be made to or for 

the benefit of a descendant of Thomas without the consent of Thomas (or by his 

legal representative during any period Thomas is under a legal disability). 

The RT portion also provides for distributions of medical expenses, but specifies: 

However, any distribution to or for the benefit of one of Thomas‟ descendants 

shall only be made with the consent of Thomas (or Thomas‟s legal representative 
20

if Thomas is under a legal disability). Such consent to any distribution to be made 

to one of Thomas‟ descendants may not be given more than sixty (60) days in 

advance, and shall be deemed valid only to the extent it is given freely and 

voluntarily.

The RT portion further provides for distributions for qualifying students, with the caveat:

Notwithstanding the above provisions of this Paragraph [], during Thomas‟ 

lifetime, no distribution shall be made to a child of Thomas under this 

Subparagraph [] without the specific approval of Thomas (or without approval of 

Thomas‟ legal representative during any period Thomas is under a legal 

disability). Thomas‟ consent to any distribution to be made to one of his 

descendants may not be given more than sixty (60) days in advance, and shall be 

deemed valid only to the extent it is given freely and voluntarily

In sum, the consent power Dr. Bernard Winston gave Dr. Thomas Winston in the 1993 

Trust is unambiguous and clearly contains no limitations on what basis the decision to give or 

withhold consent may be made. No fiduciary duty is expressly or impliedly connected to the 

consent power. The consent terms do not mention the “Trustee” but rather “Thomas.” The 

distribution provisions containing the consent power all give the Trustee direction or permission 

to make a distribution based on certain purposes and with certain limitations. Only after this 

discretion has been exercised by the Trustee does the possible distribution come before 

“Thomas” for his free and voluntary consent. And finally, use of the words “Provided, 

however,” “However,” and “Notwithstanding the above provisions of this Paragraph” indicates 

that the consent power overrides whatever is provided in the preceding language.

V. Attorney Fees

Dr. Thomas Winston argues that the trial court‟s award of attorney‟s fees to the twins was 

erroneous because it was based on their prevailing on most issues, and the trial court erred in 

ruling in the twins‟ favor on those issues (no contest clause, breach of fiduciary duty, 

modification). Dr. Thomas Winston makes the alternative argument that if this Court finds the 

trial court did not err in ruling in the twins‟ favor on the particular issues he challenges on 
21

appeal, then the award of attorney‟s fees still must be remanded “for a recalculation of the 

attorney‟s fees, with only fees for work done on successful claims chargeable to Dr. [Thomas] 

Winston.” The twins argue in response that (1) section 456.10-1004 does not require that 

attorney‟s fees be awarded only to a prevailing party, (2) the trial court cited numerous 

reasonable factors that led it to award the twins‟ the amount of attorney‟s fees that it did, and (3) 

because the litigation was brought and defended in good faith and there were issues addressed 

which could only have been settled via judicial determination, the award of attorney‟s fees was 

proper.

Section 456.10-1004 provides:

In 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.

Review of a trial court‟s decision to award attorney‟s fees is for abuse of discretion. O'Riley v. 

U.S. Bank, N.A., 412 S.W.3d 400, 418 (Mo. App. W.D. 2013) (citing In re Gene Wild Revocable 

Trust, 299 S.W.3d 767, 782 (Mo. App. S.D. 2009)). If the award of attorney‟s fees is either 

arbitrarily arrived at or so unreasonable as to indicate indifference and lack of proper judicial 

consideration, then the trial court has abused its discretion. Id. The trial court‟s award of 

attorney‟s fees is presumed correct, and the complaining party has the burden to prove otherwise. 

Id. Appellate review of a challenge to an award of attorney‟s fees gives deference to the 

discretion of the trial judge who, because of his or her office and experience, is considered an 

expert in determining the proper amount of compensation for legal services. Id. at 418-19.

The trial court‟s stated reasoning for awarding the twins‟ attorney‟s fees to be paid by 

Thomas personally was as follows:
22

Justice and equity require that the Twins, who did not initiate the instant suit but 

were brought into this litigation as third party defendants, and whose interests as 

beneficiaries of the Trusts were damaged as the result of Thomas‟s breach of 

fiduciary duties, be awarded costs and expenses in this case, including reasonable 

attorney‟s fees. To charge such costs and expense against Trust principal would 

damage the future interest of the Twins, who were innocent of wrongdoing in this 

case. Therefore, such attorney‟s fees are properly chargeable against Thomas, 

whose actions necessitated the Twins‟ counterclaim, as a surcharge for his breach 

of fiduciary duties.

While it is true that the twins did not initiate the instant action but were brought in as third-party 

defendants; as discussed above, Dr. Thomas Winston did not have a fiduciary duty attached to 

his consent/veto power, and thus there was no breach of fiduciary duty. The award of attorney‟s 

fees is reversed and remanded for further consideration in accordance with this opinion.

Additionally, the twins moved for attorney‟s fees for the instant appeal and the motion 

was taken with the appeal. 

Missouri has adopted the “American Rule” which provides that litigants are 

generally required to bear the expense of their own attorney's fees absent statutory 

authorization or contractual agreement. However, both trial and appellate courts 

may award attorney's fees to a party if such an award is authorized by statute[.]

Rosehill Gardens, Inc. v. Luttrell, 67 S.W.3d 641, 648 (Mo. App. W.D. 2002) (citations omitted). 

Section 456.10-1004 allows the court to award attorney fees in a judicial proceeding involving

the administration of a trust “as justice and equity may require[.]” Additionally,

[w]hen fixing the amount of attorney's fees to be awarded, courts are considered 

experts, and their expertise extends to the value of appellate services. And, 

although appellate courts have the authority to allow and fix the amount of 

attorney's fees on appeal, we exercise this power with caution, believing in most 

cases that the trial court is better equipped to hear evidence and argument on this

issue and determine the reasonableness of the fee requested.

Rosehill Gardens, Inc., 67 S.WW.3d at 648.
23

The issue of attorney‟s fees, costs, and expenses on appeal is therefore remanded to the 

trial court for determination “as justice and equity may require” in accordance with section 

456.10-1004.

Conclusion

The twins did not violate the no-contest clause of the trusts. Dr. Thomas Winston‟s 

veto/consent power over potential distributions to the twins is separate from any fiduciary role he 

has in connection with the trusts and is not limited by fiduciary considerations. The 

estrangement and hostility between Dr. Thomas Winston and the twins did not constitute

changed circumstances such that the trusts must be reformed to effectuate Dr. Bernard Winston‟s 

intent. Based on the foregoing, we reverse the trial court‟s conclusion that Dr. Thomas Winston 

breached a fiduciary duty as to the 1990 Trust, the trial court‟s order to remove Dr. Thomas 

Winston‟s veto/consent power over potential distributions to the twins, and the trial court‟s order 

that distributions for automobile and educational expenses be made to the twins from the 1990 

Trust.

At least part of the trial court‟s reasoning for its award of attorney‟s fees to the twins is 

reversed in this opinion, and therefore the issue of attorney‟s fees, costs, and expenses of the case 

is reversed and remanded for determination in accordance with section 456.10-1004 and the 

conclusions of this opinion.

__________________________________________

VICTOR C. HOWARD, JUDGE

All concur.