To transfer real estate, a person needs the legal capacity to do so. Similarly, the recipient has to be legally capable accepting the transfer. Any necessary witnesses have to be capable of carrying out their responsibilities as well.
A deed transfers rights and responsibilities alike. Those who create and sign deeds must understand the meaning of the act. So, if a deed is signed by a minor or someone who is seriously impaired, the deed transfer could be set aside. How? It could go to court in a quiet title action.
Is Voiding a Deed Hard to Do?
In certain situations, voiding a deed isn’t hard to do. A deed is void in the first place if the deed signer has already been declared legally incompetent. A legally appointed guardian would have to approve the transfer. The court would oversee the transfer to ensure it was done in the incapacitated owner’s best interest.
But in other circumstances, the question of a deed’s validity might not be so cut and dried. In one common scenario, an elder with declining mental capacity— perhaps someone in a nursing home or hospital — succumbs to the undue influence of someone who wants to elbow other beneficiaries out of the way.
One or more people who were passed over could claim such a deed transfer wasn’t above board, and they might hope to have it voided. If they challenge the deed, their path won’t be easy.
Why not? Because a deed that simply follows the county procedures is presumed valid. So, once a quitclaim or any deed is notarized, accepted, and filed in the county’s records, it’s very difficult to prove a deed is improper.
The outcome of a deed challenge turns on situation-specific facts. It also turns on the fine points of state law.
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Notaries Cannot Diagnose People Who Sign Documents…
Notaries witness signatures and verify the identities of the people they witness. Generally, under state laws, you’ll find that the only time a notary has to decline to notarize a deed is when it’s obvious that the person signing doesn’t understand the implications of what’s happening, or when the person is clearly being forced to sign.
That said, a notary isn’t a judge, an investigator, or a doctor. A notary’s job doesn’t include determining whether the deed is legal. Whether the transfer is fair or appropriate isn’t a question for the notary to ask.
Yet a Signed and Notarized Deed Can Be Challenged.
Bringing a challenge against someone’s deed can be costly and time-consuming. For a valuable home that appears to be improperly gained, though, the effort could be worthwhile. Lawyers hired to pursue these cases might bring in medical experts to offer the court their professional views of a deed signer’s neurological capabilities.
Some property owners sign deeds under pressure. Caregivers, advisers, family or acquaintances do sometimes wrongly persuade owners to sign their deeds away. Some deed holders are cognitively incapable of understanding the transfer, but sign the document anyway.
A lawyer would look at the facts and the history of state court decisions for legal reason(s) to challenge the signer’s legal capacity to transfer property. Common reasons include:
Undue Influence
Was the deed signed by a person who lacked cognitive capacity to understand the consequences of signing? Was the signer improperly pressed to sign by a trusted person?
Health records, the circumstances of the transfer, and related factors could show undue influence. If so, the deed can be declared voidable. That means a court could decide to quiet the title.
Lack of Mental Capacity
Often, undue influence occurs when the person signing the deed lacks mental capacity. A lack of mental capacity could have various root causes: a lifetime disability, a brain injury, loss of cognitive skills with age, and so forth. Proof would entail scouring the medical records and hiring expert witnesses.
By demonstrating lack of mental capacity, the lawyer can ask the court to declare the property deed invalid.
Because a valid deed requires that the signer has sufficient capacity, no one should accept a deed at closing if the signer doesn’t understand:
- The way a deed transfer works, how the signer is disposing of the property, and how this action impacts the signer’s ownership rights.
- What property the signer is actually transferring and its monetary value.
- The full payment being transferred in return for the deed.
The person managing the closing needs to stop if a party to a real estate deal shows a lack of full memory, intoxication, serious senility, or one party unduly influencing the other.
What About a Deed Signed Over by an Underaged Person?
The minor might have been a legitimate property owner. Yet that doesn’t give an underaged person the capacity to sign over their interest in real estate.
If an underaged owner transfers the property to someone else, the new deed is voidable. The minor may recover ownership upon reaching adulthood. But what if someone wants to void the transaction? Then the case will likely go to court — to undo the deed and have the minor pay back any money involved. A minor who buys a home could decide to have the transfer voided and be repaid. But if the minor pretended to be of age, the other party might be able to claim fraud.
Why would a minor even be on a property deed — either as sole or co-owner? Perhaps the child’s parents believed that naming a child on the deed could ensure that the child would get the home if anything happened to them. To transfer the minor’s interest from the title, or just to get the minor’s name off the deed, a court-appointed representative for the child will usually need to be involved, to protect the underage owner’s financial interests.
Some Bad Deeds Go Unpunished
Real estate is valuable. Every day, people are pressed to transfer their ownership interests. But quieting a title and undoing a deed is never easy.
Sometimes, the statute of limitations has kicked in. In Texas, for example, a deed from an incapacitated person is voidable, but someone must step up with a court challenge within four years.
Sometimes, even if there is a case to be made in court, a key person dies before the case is heard. Sometimes, the case against the deed transfer just lacks strong enough evidence to persuade a court.
As a threshold matter, an incapacitated person has to actually be determined to be just that, under your state law’s definition and related provisions. This does not happen automatically, unless the person has already been legally declared incapacitated. No one should be called incapacitated unless a court has found that person incapacitated. If and when a court does so, it will appoint a guardian or other personal representative for the person and property.
What if the person was only temporarily impaired — say, under the influence of substances — at the time of a deed transfer? This can be very hard to prove. In most transactions, the home sale process itself is too long and complex for this to be a real issue. If any of these conditions are spotted at closing, the event is supposed to stop.
To challenge any problematic deed transfer, consult a lawyer, licensed in the state where the home is, to receive legal opinions. This article is general information only, and should not be taken as case-specific legal advice. And of course, no attorney-client relationship is formed by reading this or any other blog. So, your first step is to contact a local attorney to learn how your issue can best be addressed.
Supporting References
Stewart Underwriting Manual: TX 9.00 Incapacitateds And Mentally Incapacitated Persons (2005).
Richard D. Vetstein: Challenges to Deeds: Forgeries, Undue Influence, Mental Capacity, and Defective Notarizations (Jun. 14, 2019; published by the Vetstein Law Group, PC in Massachusetts).
Wendy Hughes on Real Estate: Blog – Sale, Mortgage, Exchange, or Transfer by a Ward’s Estate (Mar. 6, 2017, published by the Hutchens Law Firm in Fayetteville, NC).
Deeds.com: Can a Quitclaim Deed Be Undone? (Sep 5, 2022).
Deeds.com: Removing a Minor From a Real Estate Title (Nov. 25, 2013; citing Arizona real estate and contract attorney Carlton Casler).
And as linked.
Photo credits: Gustavo Fring and Shvets Production, via Pexels.