COA: Joint tenancy survives death of one party

A joint tenancy with a right of survivorship was not severed by the signing of a purchase agreement, allowing one party to keep all the proceeds from a sale after the death of the other owner, a panel of the South Carolina Court of Appeals has ruled, reversing both the probate and circuit courts.
Thomas G. Moore passed away on Dec. 13, 2013. He was survived by five children: Michael Dennis Moore, Thomas Paul Moore, Phillip Frederick Moore, Francine Laura Lawhorn and Linda Kaye Moore. The decedent left a will dated Sept. 27, 1997 which appointed Michael as the personal representative.
The will was admitted to the Florence County Probate Court on Feb. 20, 2014. In a 2016 order, the probate court ruled a document — separate from the will that was found within the decedent’s safe with the will — should be integrated into the will.
The separate document sought to devise for Thomas an interest in a five-acre piece of property located in Richland County that was referred to as the “Church Property” because it was located across the street from the house of the pastor of Horrell Hill Baptist Church. The church’s pastor was the decedent’s pastor, Reverend Lester Moore. The decedent and Rev. Moore each owned half of the property.
In addition, the probate court ordered Michael to pay the estate half of the sale proceeds from a property sale. Michael and the decedent jointly purchased 334 Cypress Avenue in Garden City, with each owning half the property. They entered into an agreement to sell the property in November 2013, prior to the decedent’s death.
The property was sold on Dec. 27, seven days after the decedent’s death. Michael signed the deed individually and received all the proceeds from the sale, despite the existence of the sales contract before the decedent’s death. The probate court ordered him to pay the estate half of the $324,500 sale price.
Michael appealed and the circuit affirmed the order. He appealed again.
In a decision authored by Judge Paula H. Thomas, the court reversed with regard to the joint tenancy issue.
“The sales contract was silent as to whether severance of the joint tenancy was intended by [Michael] and the decedent, and no extraneous circumstances indicated severance was intended by the parties,” she wrote. “Thus, we find the probate and circuit courts erred in finding the joint tenancy became a tenancy in common without rights of survivorship when [Michael] and the decedent entered into a sales contract for the sale of the property and hold the joint tenancy was not severed in this case.”
Joint tenancy stands
Michael argued that the joint tenancy with a right of survivorship was not defeated at the time the purchase agreement was signed.
Thomas looked to Section 27-7-40(a), which provides: “(i) In the event of the death of a joint tenant, and in the event only one other joint tenant in the joint tenancy survives, the entire interest of the deceased joint tenant in the real estate vests in the surviving joint tenant, who is vested with the entire interest in the real estate owned by the joint tenants … “
“(iii) The fee interest in real estate held in joint tenancy may not be encumbered by a joint tenant acting alone without the joinder of the other joint tenant or tenants in the encumbrance. (iv) If all the joint tenants who own real estate held in joint tenancy join in an encumbrance, the interest in the real estate is effectively encumbered to a third party or parties.”
The probate court cited to this section to declare that the sales contract entered into prior to the decedent’s death encumbered the property, entitling the purchaser to possession of the property upon payment of the agreed price and the decedent to just one half of the proceeds at closing.
Michael countered that he was the sole owner of the property at the time it was sold because the decedent passed away before the final closing and recording of the property.
Finding no South Carolina cases that addressed the issue and noting that Section 27-7-40 does not provide that an encumbrance on real estate severs the joint tenancy with a right to survivorship, Thomas looked to other states for guidance.
Although she found a split in authority as to whether a contract for the sale of property severs a joint tenancy with a right to survivorship, Thomas elected to follow a Florida decision, where the court held that “severance does not automatically occur upon the execution of a contract to sell that is executed by all joint tenants, unless there is an indication in the contract, or from the circumstances, that the parties intended to sever and terminate the joint tenancy.”
Finding no such indication in the contract or the circumstances in the case at hand, Thomas reversed the probate and circuit courts. The sales contract was silent as to whether the parties intended to sever the joint tenancy and no extraneous circumstances indicated that severance was intended, she said.
“Therefore, we reverse the probate and circuit courts on this issue and find the estate is not entitled to proceeds from the sale,” she wrote.
Issues not considered
Thomas rejected Michael’s other two points on appeal: prejudicial submission of evidence and allowance of new claims on the day of trial and that the separate document should not have been integrated into Thomas’s will.
As to the first issue, Michael raised it for the first time on appeal and therefore, it was not preserved for review. At trial, Michael did not object to the introduction of the documents into evidence; nor did he object when the probate court denied his request to respond to the evidence with a summary of his own, she noted.
“Further, even if [Michael] raised any errors related to these issues in his motion to reconsider to the probate court, we cannot review that motion because [he] did not include it in the record on appeal,” she said.
Thomas declined to consider the issue of the separate document that was integrated into Thomas’s will by the probate court.
Michael did not include a copy of the will or the separate document in the record on appeal, despite the fact that it was his burden as the appellant to provide a sufficient record on appeal from which the court could make an intelligent review, she explained.
“Without the inclusion of the will or the separate document that was allegedly incorrectly integrated into the will, we decline to consider the issue,” Thomas wrote.
Michael Dennis Moore represented himself pro se.
Florence attorney C. Pierce Campbell, of Turner Padget Graham & Laney, represented Thomas Paul Moore. He declined to comment given the ongoing litigation.
The 9-page decision is Moore v. Moore (In re Estate of Moore) (Lawyers Weekly No. 011-002-21). The full text of the opinion is available online at sclawyersweekly.com.