by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

JOINT TENANCY; CONVEYANCES; DECEDENT'S ESTATES: The operation of common-law joint tenancy upon the death of one joint tenant does not operate as a transfer under the Uniform Fraudulent Transfer Act (UFTA). Mahlin v. Goc, 547 N.W.2d 129 (Neb. 1996).

Plaintiff, an attorney and his wife, both attornies, went to defendant's property to conduct business regarding a replevin action on behalf of their clients, who were attempting to retrieve a thoroughbred horse held by the Defendant.

Defendant shot both plaintiff and his wife numerous times with a 12-gauge shot gun, also kicking Mrs. Mahlin in the head and body as she lay on the ground after being shot. Mr. Mahlin killed Mr. Goc with his vehicle as he apparently tried to drive away.

The Mahlins, who undoubtedly had a substantial tort claim against Mr. Goc's estate, sought to avoid the "transfer" of Mr. Goc's land to his spouse, with whom he held the property in joint tenancy. The Uniform Fraudulent Transfer Act defines "transfer" as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance."

At common law, however, joint tenants hold by the half and by the whole and a survivor's interest attaches by means of the original conveyance and not by transfer of the decedent. The only question worth discussing here was whether the broad language of UFTA might nevertheless reach the acquisition through a survivorship joint tenancy estate. The court noted the rule that statutes which effect a change in the common law or take away a common-law right must be strictly construed and cannot be adopted unless the plain words of the act compel it. Nothing in the statutory language indicated a legislative intent to abrogate the operation of joint tenancy upon death. Further, prior legislation that had attempted to subject surviving joint tenants to the debts of the deceased tenant had been repealed. Thus the definition of transfer found in the UFTA did not apply in this case.

Comment: The legal point is not particularly surprising, but the facts of this case is something that one doesn't see every day (or at least hopes not to see.) It seemed like a good posting for a Friday the 13th.

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