Could your family situation be any worse? Imagine the Thanksgiving dinners. Take the situation of these six siblings. In July 2001, Harold secures a deed signed by his mother Ethel giving him the family home. He records the deed. In November 2001, Ethel signs another deed transferring the family home to a trust, with daughter Deborah and herself as the co-trustees. Ethel reserves a life estate for herself. That deed and trust are recorded a few months later. In the many estate plans created by Ethel, sons Harold and Lawrence were always excluded because they were provided for through a prior gift of the family oil business. The other four children were to inherit the remaining estate. Ethel's last will is in 2008, and she continues to exclude Harold and Lawrence specifically because of the lifetime gift of the business. Ethel dies in December 2009, and shortly thereafter, Deborah learns of Harold's claim to the family home. Her lawsuit is filed in January 2010.
Today, in Allen v. Allen, 13-P-605, the Appeals Court in Massachusetts affirmed the Land Court Judge's determination that the first deed was defective, and title to the property is held in the name of the trust. The case was one of first impression and dissects the recording statute, G.L.c. 183, Section 4. Key to the findings was the fact that the attorney and notary of the first deed could not remember Ethel being before him to sign the deed, and after evidence indicated that Ethel may not have been in the state at the time it was signed, he agreed that the date and place on the notary acknowledgment might not be accurate. In a 23 page decision, the court determined that even though a notary acknowledgement is not required for a deed to be valid, it is required to record the deed. Because of the defect in the certificate of acknowledgement, the recording was in error and the deed did not provide constructive notice to the world of its existence. Harold was unable to prove that Deborah had actual knowledge of the transfer, and the court refused to impute knowledge. The subsequent deed was held to be valid.
There are many take-aways for lawyers from this case. A simple online title search at the time of recording the November deed would have alerted her children to the July deed while Ethel was still alive. The take away for clients: parents beware - you run the risk of estate disputes when children are treated differently. Any hoped for harmony is nearly impossible without thoughtful discussion about succession and transparency while you are alive.