A Mother's Wishes, a Father's Prerogative

Q: My mother passed away a few years ago. Since then, my father has married and begun to sell properties that he and my mother accumulated over the years.

My mother wanted her four children to have equal shares of a particular property. Although she did not put this in writing, she told me and a few other family members her wishes on numerous occasions. My father sold this property but did not tell any of us about it. I found out only recently.

When I questioned him, he was uncomfortable, but he said it was his business what he did with the property. He later told me that his and my mother's wills were based on right of survivorship and that his new wife has only a life estate in the home they are living in.

However, even after repeated requests, my father has never let me see or review his will. He is 77, and I am the oldest child, at 50. I am concerned because my father seems to be spending large sums of money on trips with his new wife, additional construction on his home at his wife's request and expensive gifts to her children. I believe that my father should have respected my mother's wishes and not sold the property.

Can I file a lawsuit (with affidavits from those who heard my mother's wishes) to recover the monetary value of the property for myself and my other siblings? Incidentally, I have not spoken much to my siblings about this matter because I believe that they will just go back to our father with this information so they don't rock their "inheritance boat."

A: I understand your anxiety, but unless you can prove that your father was mentally incompetent at the time he sold the property, you do not have a case.

Just because you are his child does not guarantee that you have the right to inherit from your father. It is his property, and he can do with it as he sees fit.

You want to see his will. Why? The function of a will -- a document everyone should have -- is to memorialize the wishes and desires of the person writing it. To be blunt, it is not your business.

People change their wills all the time, as circumstances change. Right or wrong, your father may want to assist and support his new wife, which is his prerogative.

Your father told you that his and your mother's wills were based on the right of survivorship. That's not exactly correct. I assume that your parents owned their property as tenants by the entirety. This is a form of legal title reserved for married couples. In effect, both parties own the entire property. On the death of one spouse, the surviving spouse becomes the sole owner, and probate is not necessary. Because a spouse cannot unilaterally divide the property, the will of one spouse has no legal effect on the disposition of that property.

Compare this to when title is held as tenants in common -- the way many unmarried people hold title. Here, each owner has a divisible interest. If someone wants to buy half a property, one of the owners has the right to sell. There is nothing the other owner can do about this.

Upon the death of one owner, his or her interest in the property must go to probate. And in this case, the property will be distributed in accordance with that person's will. (There's another form of ownership, joint tenancy, that is similar to tenancy by the entirety but not reserved for married couples.)

You say you want to file suit. Even if you are able to prove that your father was not mentally competent, I doubt that a judge would set aside a sale to a third party. In law, there is the concept of a bona fide purchaser. If the buyer was not related to your father and had no knowledge of your mother's intentions, that sale would survive. And because you did not own the property -- or even have a real interest in it -- you might not have legal standing to file a lawsuit.

Of course, if it is determined that your father is mentally impaired, the court could appoint a guardian and a conservator to monitor his activities and handle his future financial affairs. But that still may not guarantee that his property and his money will go to you and your siblings.

You referred to the "inheritance boat." I have never heard that concept before. But the captain of that boat is your father, and the captain's word is law.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.