Opinion
No. 109,569.
2013-11-22
Tom SPLECHTER, Appellant, v. Edward SPLECHTER and Tracy Splechter, Appellees.
Appeal from Woodson District Court; David William Rogers, Judge. Daniel Schowengerdt, of Johnson Law Office, PA, of Iola, for appellant. Charles H. Apt III, of Apt Law Offices, LLC, of Iola, for appellee.
Appeal from Woodson District Court; David William Rogers, Judge.
Daniel Schowengerdt, of Johnson Law Office, PA, of Iola, for appellant. Charles H. Apt III, of Apt Law Offices, LLC, of Iola, for appellee.
Before BUSER, P.J., BRUNS, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Mary Splechter filed suit against her son and daughter-in-law, Edward and Tracy Splechter, seeking to set aside a deed she executed; the deed transferred certain real estate in Woodson County, Kansas, exclusively to Edward and Tracy. Prior to this deed, Mary had executed a transfer on death (TOD) deed conveying title to the property to all three of her sons, Tom, Robert, and Edward, upon her death. Early in the litigation, questions were raised regarding Mary's capacity to make legal decisions. Thereafter, Mary moved to substitute one of her sons, Tom, as the plaintiff. Edward and Tracy agreed to the substitution.
In the district court, Tom asserted that Mary was not competent at the time she executed the deed transferring the real estate to Edward and Tracy; he also claimed that the deed was procured by undue influence exercised by Edward and Tracy over Mary. After receiving testimony from various family members and other witnesses, the district court issued a detailed opinion rejecting Tom's claims and refusing to set aside the deed. Tom appeals.
Upon reviewing the record, this court issued an order to show cause questioning Tom's standing to pursue these claims. The show cause order noted that Tom Splechter did not appear to have any vested interest in the real property in dispute and that the record did not reflect that Tom had been appointed as Mary's conservator or other fiduciary to pursue this claim on her behalf. In fact, the record established that Mary had granted Edward her power of attorney for financial matters in 2009.
Both Tom and Edward responded to the show cause order. Tom asserted that he had a stake in the outcome of the case based on the preexisting TOD deed Mary executed with respect to the real estate in question. Tom notes that if the deed to Edward and Tracy is set aside, he will receive 1/3 of the property on his mother's death. In contrast, Edward urges this court to dismiss the appeal for lack of standing noting that even as a grantee of a TOD deed, Tom currently has no vested interest in the real estate.
Standing is a jurisdictional issue. Whether a court has jurisdiction is a question of law over which we exercise unlimited review. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 916, 296 P.3d 1106 (2013). To meet the traditional test for standing, a person must demonstrate that he or she suffered a cognizable injury and there is a causal connection between that injury and the challenged conduct. Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 761, 189 P.3d 494 (2008). In other words, a person must suffer an injury for which the law offers some legal remedy. See Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (listing standing requirements as injury in fact, causation, and redressability).
Tom relies solely on Boucek v. Boucek, 297 Kan. 865, 305 P.3d 597 (2013), to establish he has standing in this case. In that case, Bernice and Frank Boucek executed joint, mutual, and contractual wills in 1989 agreeing that after the death of both of them, their property would be distributed equally to their four children, including their son John. Frank died in 1998, but his will was never probated. After a variety of disputes arose between family members, Bernice executed a new will and inter vivos trust in 2004 that disinherited John; Bernice transferred the bulk of her assets into the new trust. John sued his mother claiming her actions breached the contractual will she and Frank had executed. Bernice died during the litigation and the district court substituted her executors as defendants. The district court ruled in favor of the executors and the Court of Appeals affirmed. The Supreme Court granted review.
Before the Supreme Court, the executors argued that John's claims of breach of contract were barred by the statute of limitations. The Supreme Court found that John had standing as a beneficiary of his parents' original contractual wills to pursue the claims. “ ‘Once one of the parties to a contractual will dies and the other party accepts benefits under the will, the survivor cannot then revoke or alter the terms of the will....’ [Citation omitted.]” Boucek, 297 Kan. at 873. At the time of the appeal in Boucek, John had a vested interest in the property because the interest of the beneficiaries named in a joint, mutual and contractual will vested upon the will's being admitted to probate. In re Estate of Burcham, 248 Kan. 897, Syl. ¶ 2, 811 P.2d 1208 (1991). See also In re Estate of Milward, 31 Kan.App.2d 786, 792–93, 73 P.3d 155 (2003) (a person who is a named beneficiary under a contract between others to make wills with mutual and reciprocal provision can maintain a suit to enforce the contract).
In this case, however, there is no claim that Mary and her husband, Thomas, Sr., executed contractual wills that would have limited Mary's ability, after her husband's death, to transfer or bequeath their property as she saw fit. The only basis of Tom's claim of standing is that he was one of several grantees on an earlier TOD deed. However, a TOD deed only transfers ownership of interest in the property upon the death of the grantor. K.S.A. 59–3501(a). The designation of a grantee beneficiary on a TOD deed may be revoked at any time prior to the grantor's death; the grantor is not required to notify or obtain the consent of the grantee beneficiary to revoke the beneficiary designation. K.S.A. 59–3503(a). A grantee's interest in real estate included in a TOD deed only vests after the grantor's death. In re Estate of Roloff, 36 Kan.App.2d 684, 690, 143 P.3d 406 (2006). See also Nicholas v. Nicholas, 277 Kan. 171, 183, 83 P.3d 214 (2004) (POD designation on a security has no effect on ownership until the owner's death and may be canceled or changed at any time without the beneficiary's consent. K.S.A. 17–49a06.).
Under the facts of this case, Tom lacks the requisite personal stake in the outcome of a case as to justify court action to resolve the matter. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 30, 59 P.3d 1003 (2002). He has no vested right in the real estate subject to the contested deed; even if the present deed was invalidated, Mary would still have every right to transfer the property to third parties or change the TOD beneficiaries until her death. Although Mary's competency—both at the time of transfer and at the time of trial—was questioned, the record does not establish that she will never regain the mental capacity to make such decisions.
We recognize that Tom was substituted as the party plaintiff without an objection by defendants. However, parties may not confer jurisdiction by consent or waiver. Mid–Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
Based upon the record before us and the parties' responses to our order to show cause, Tom lacks standing to pursue these claims. Accordingly, his appeal must be dismissed.
Dismissed.