In Re Estate Of Johnson

739 N.W.2d 493 (2007)

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Nature of the Case

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Facts

Roy and Emogene Johnson (P) purchased a home. They were married and took title to the home as joint tenants with the right of survivorship. They continued to live in the home for over thirty-five years. P suffered a severe stroke. The prognosis for her recovery was bleak, and she required intensive medical attention. Everyone assumed Roy would survive her. The family decided P should transfer title in her automobile to Roy, as well as her interest in the homestead. P purportedly executed a power of attorney in her hospital room. This document designated her daughters, Janice Johnson and Beverly Johnson Algoe, as attorneys-in-fact. The power of attorney authorized Janice and Beverly to sell P's property, but not her homestead. Janice and Beverly transferred the title for P's car to Roy. On that same day, a quitclaim deed was drafted to convey P and Roy's interest in their homestead solely to Roy. P nor her agent signed the deed that day, perhaps because the power of attorney did not authorize P's agents to sell or encumber the homestead. P purportedly executed another power of attorney. This power of attorney specified the legal description of the homestead and authorized Janice to convey or encumber P's interest in the homestead. Janice signed the quitclaim deed on behalf of P, as indicated by the notary's seal. The deed was recorded the same day. Lo and behold Roy suddenly passed away survived by Pand the three children, Janice, Beverly, and William. Lo and behold Roy suddenly passed away survived by Pand the three children, Janice, Beverly, and William. Roy's will gave all of his property to his three children in equal shares, although he did not specifically disinherit P. Janice was named executor of Roy's estate in his will, but Beverly took her place after Janice's death in June of 2004. P remained the surviving spouse and elected to take against the will. P claimed the transfers of her car and her interest in the homestead were illegal because she was incompetent when the powers of attorney were executed. The court found P to be incompetent when she signed the powers of attorney which made the transfers to Roy invalid as well. But, the court held that Roy unilaterally terminated the joint tenancy. It held that P's statutory homestead rights did not prevent Roy from destroying the joint tenancy because the effect of Roy's self-conveyance of his interest only created a tenancy in common, which meant P still maintained her homestead rights to possess the property. Thus, the title to the homestead was split between P and Roy's estate as tenants in common in 'undivided one-half' shares. P appealed. P passed and her son was named executor of her estate.