Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 980 N. Federal Highway, Suite 440, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is Board Certified by the Florida Bar in Real Estate Law and Condominium and Planned Development Law.


A natural person must be mentally competent to legally convey real property by deed. That is not a novel or surprising proposition. Suppose a woman in her nineties is selling her home and she attends the closing to sign the deed and other closing documents. She is not represented by an attorney, and she arrives in a wheelchair with her aide. The settlement agent, having met the seller for the first time, starts a conversation with her and pleasantries are exchanged. The seller responds appropriately and signs all of the closing documents, including the deed. The transaction closes in the ordinary course. However, three months later, the seller’s son files a petition to determine the seller’s incapacity, the court finds that the seller is incompetent, and the son is appointed as the guardian of the person and property of the seller. The son now alleges that the deed his mother signed three months prior is invalid because she was incompetent and he asks the court to set aside the deed (because the home was supposed to remain in his mother’s estate for distribution to the son upon her death). Should and will the deed be set aside?

In the ensuing litigation, the son will have the burden of proof to overcome “the strong presumption in favor of the validity of deeds “by clear, strong and convincing evidence,” as reaffirmed in the recent case of Marcinkewicz v. Quattrocci, 41 Fla. L. Weekly D2094a (Fla. 3d DCA 09/06/16).  The mother’s “mental capacity as grantor is presumed and must be overcome by a preponderance of the evidence”. Saks v. Smith, 145 So. 2d 895, 896 (Fla. 3d DCA 1962). The Court stated that the focus in any challenge to a grantor’s mental capacity is on the grantor’s capacity at the time the deed is executed:

“The burden rests on those seeking to set aside a deed on the ground of incapacity of the grantor at the time the instrument was executed. For it is the capacity of the grantor at the time the deed is executed and delivered that is controlling and his subsequent incapacity will not affect the deed. Parks v. Harden, 130 So. 2d 626, 628 (Fla. 2d DCA 1961).”

In Marcinkewicz, the Third District Court of Appeal reversed the trial court’s judgment which set aside the deed because the burden of proof was not met to establish that the grantor lacked the mental capacity when she signed the deed in July, 2013, despite evidence that:

1. In 2010, 3 years before she had signed the deed, the grantor was adjudged incompetent and her daughter was appointed the guardian of her person and property;
2. In January, 2012, 16 months before she had signed the deed, the guardianship was dissolved, but a limited guardianship remained over her person (see Florida Statutes Section 744.331(6) which gives the guardianship court the authority to specify which rights a person is mentally incapable of exercising, and apparently, the right to contract was not one of those rights the grantor could not exercise in the Marcinkewicz case); and
3. The grantor’s testimony at the trial convinced the trial judge that she lacked the mental capacity to sign a deed as of the trial date ( November, 2014; 18 months after she had signed the deed).

The only evidence that was presented at trial which was relevant to the grantor’s mental capacity when she had signed the deed was the testimony of the grantor’s attorney who had prepared the deed and witnessed her signing it in July, 2013. The attorney stated under oath that the grantor “knew what she was doing. . . .She had her faculties. . . I have known [her] for ten, 15 years…. [and] she wasn’t under any mental weakness of any kind.”

At a closing, who has the capacity to determine whether the grantor has the mental capacity to sign the deed, and how is that determined? A name search of the grantor would show a recorded order of incompetency but not a pending proceeding. A court records search might disclose any pending incompetency litigation. A discussion of substance with the grantor could be undertaken to evaluate her understanding of the pending transaction. The grantor’s physical condition might also give some clues about her mental capacity. Should or must a settlement agent hire a psychiatrist to attend all closings and require the parties to submit to a mental examination before the closing papers are signed!?

These are not easy questions to answer, and the law recognizes this practical difficulty by imposing the presumption of validity of deeds and requiring the party challenging the grantor’s mental capacity to prove the grantor’s mental incapacity at the time the deed is signed. The challenger should not solely rely upon a prior or subsequent adjudication of the grantor’s incapacity, even though that might appear to be very strong circumstantial evidence of incapacity at the time the deed was signed.