McGregor v. McGregor, 123,657

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation501 P.3d 378 (Table)
Parties Lori MCGREGOR, Appellant, v. Scott MCGREGOR, Scott McGregor, as Executor of the Estate of Jo Anne Edwards, Appellees.
Docket NumberNo. 123,657,123,657
Decision Date30 December 2021

501 P.3d 378 (Table)

Lori MCGREGOR, Appellant,
Scott MCGREGOR, Scott McGregor, as Executor of the Estate of Jo Anne Edwards, Appellees.

No. 123,657

Court of Appeals of Kansas.

Opinion filed December 30, 2021.

Lori McGregor, appellant pro se.

Jay Fowler and Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for appellees.

Before Bruns, P.J., Green and Isherwood, JJ.


Per Curiam:

Lori and Scott McGregor's mother, Jo Ann Edwards, died in July 2020. Five years before her death, in September 2015, Edwards signed a document appointing Scott as her durable power of attorney. In May 2016, she signed a transfer on death deed (TODD) that would transfer her property in Yates Center (the Property) to Scott upon her death. Shortly after Edwards' death, Lori filed several documents asking the district court to enjoin the May 2016 TODD and invalidate Scott's power of attorney. Lori argued that the May 2016 TODD was invalid because it failed to include the language "as grantee beneficiary," the language "as owner," or a habendum clause. She also argued Scott's power of attorney over the Property was invalid because the appointment document did not include the Property's legal description. Scott moved to dismiss, and the district court granted his motion. Lori appeals and raises the same arguments presented to the district court. Based on a review of the issues presented, we find that any irregularities between the statutorily prescribed TODD language and the May 2016 TODD are minimal at best and Kansas law only requires substantial compliance with the suggested text. We share the district court's conclusion that Lori's argument challenging Scott's power of attorney is moot because Scott's power of attorney authority terminated when Edwards died. The decision of the district court is affirmed.


Jo Anne Edwards owned a property in Yates Center. The Property was located at "[t]he South Half of the Southeast Quarter of the Southeast Quarter (S2 SE4 SE4) of Section Twenty-seven (27), Township Twenty-six (26) South, Range Sixteen (16) East of the Sixth P.M., Woodson County, Kansas."

On October 6, 2011, Edwards executed a TODD that transferred the Property to both of her adult children, Lori McGregor and Scott McGregor, upon her death. Lori and Scott were named as grantee beneficiaries. Under the TODD, Lori could live at the Property so long as it was her primary residence.

Four years later, on September 8, 2015, Edwards signed a document granting Scott durable power of attorney over her finances. The record includes two versions of this document. One version has Edwards' initials next to a line suggesting Scott's power of attorney would commence once she was unable to manage her affairs any longer. A second version eliminated that effective date and, next to a new set of Edwards' initials, showed Scott's powers would vest on "3/18/20."

A day later, Edwards signed a second TODD which named both children as grantee beneficiaries. This TODD differed from the previous version in that it named Lori and Scott as joint tenants.

Edwards executed a third TODD in May 2016. This document excluded Lori and conveyed the Property entirely to Scott upon Edwards' death. The TODD did not include the language "as grantee beneficiary" next to Scott's name. It was properly filed at the Woodson County Register of Deeds.

Edwards passed away four years after her third TODD was filed.

Two days after her mother's passing, Lori moved for a temporary and permanent injunction to prevent Edwards' final TODD from going into effect. That same day, she also petitioned the district court to invalidate the final TODD on the grounds that it did not comply with the TODD statute. More specifically, Lori argued that K.S.A. 59-3502 required the document to include the specific language "as grantee beneficiary" and that the failure to include such language rendered it invalid. Lori asserted that the appropriate remedy was to reinstate the September 2016 TODD in which Edwards designated Lori and Scott joint tenants. Lori also requested that the district court reinstate Edwards' October 2011 TODD if it concluded the September 2016 TODD was also invalid. Additionally, Lori sought "total damages, in excess of the amount of $75,000 together with interest, costs of this action, and all other appropriate relief."

Lori also filed a motion to invalidate Scott's power of attorney with respect to specific real estate. She argued that the power of attorney document was invalid under K.S.A. 2020 Supp. 58-654(f)(10)(B) because it lacked a legal description of the Property. She also noted that Edwards did not initial the pages of the document. For those reasons, she asked the district court to prevent Scott from selling or listing the Property. Finally, Lori filed briefs in support of her motions for an injunction and to invalidate the document granting power of attorney to Scott.

Scott responded by filing a motion to dismiss. He asserted Lori's motion failed to state a claim and, in the alternative, he sought a judgment on the pleadings. Scott attached a corresponding memorandum which addressed Lori's claim that Edwards' final TODD was invalid due to the absence of the "grantee-beneficiary" language. Scott asserted that Kansas is a "substantial compliance" state as it relates to the language of deeds, and that the TODD statute reaffirmed that requirement. He highlighted that the language used in the challenged TODD substantially complied with the statutory requirements and claimed Lori's argument to the contrary simply relied on a "hodgepodge" of inapplicable cases.

Scott also filed a memorandum in opposition to Lori's motion to invalidate his power of attorney but suggested the district court could defer ruling on the matter until it ruled on his motion to dismiss or enter judgment on the pleadings. He argued that Lori apparently intended to challenge the sale of the Property but pointed out that while the Property had been listed for sale, Edwards signed the listing prior to her death. Additionally, Scott explained that with Edwards' passing, he did not need to rely on a power of attorney to execute the sale of the Property.

Lori responded to Scott's motion to dismiss and reiterated her earlier contentions about the lack of "grantee-beneficiary" language. She also added that Edwards' October 2011 TODD was the only valid TODD because both the September 2015 and May 2016 TODDs failed to name Edwards as the grantor or owner of the Property. Lori also asserted that the May 2016 TODD lacked a habendum clause as required to define the extent of the interest transferred. According to Lori, Edwards' September 2015 TODD, the version which reflected that Scott and Lori were joint tenants with equal interests, included the necessary clause.

Along with her answer to Scott's motion to dismiss, Lori also filed a reply to his memorandum opposing her motion to invalidate his power of attorney. In that response, Lori reiterated that the Property's legal description was missing from Edwards' document conveying power of attorney to Scott.

Scott filed a reply memorandum and addressed the habendum clause issue. He noted that Lori's argument, like her claim over the "grantee-beneficiary" language, focused essentially on "technical non-compliance" and pointed out that Kansas courts look to the intent of the grantor over technical compliance with the statute. Scott also directed the district court to a Kansas Supreme Court case which revealed that reviewing courts do not look to the habendum clause when identifying the grantor's intent but focus on the instrument as a whole.

Following oral arguments from the parties, the court granted Scott's motion to dismiss or, in the alternative, motion for judgment on the pleadings. It observed that the relevant facts were known and uncontroverted and explained that K.S.A. 2020 Supp. 60-212(b)(6) and (c) provided the statutory framework for its decision. According to the court, the question it needed to resolve was the extent to which Kansas law simply allows for "substantial compliance" with the TODD creation statutes ( K.S.A. 59-3501 et seq. ).

The district court found that while K.S.A. 59-3502 outlines the recommended language for a TODD, it also states that the deed should be "in substantially the following form." K.S.A. 59-3502. The judge interpreted this to mean substantial compliance with the statutory language, rather than exact conformity, satisfies the requirement. The court next reviewed relevant Kansas caselaw and concluded that substantial compliance in these matters is a decades old, well-established rule of law. Thus, Kansas law simply demands that the instrument include the essential elements set out in the statute and, to that end, Edwards' final TODD fulfilled the expectations of K.S.A. 59-3502. It explained:

"To summarize, the deed 1) includes the grantor/owner's name, 2) includes the legal description, 3) includes the grantee's name, 4) is dated, 5) is signed, 6) is acknowledged, 7) is filed of record, 8) identifies itself as a TODD and in fact refers to the specific statutory authority upon which it is executed (which itself includes the usage of the phrase ‘a deed in substantially the following form’), and 9) sets out that it has no effect until the death of the decedent/grantor."

The court also addressed Lori's argument that Edwards was not named...

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