The Connecticut Appellate Court issued an important decision on March 20, 2012 concerning who may act as a witness to a deed conveying an interest in real estate and who may act as a witness to the execution of a durable power of attorney instrument. The case is Hannaford v Mann and it can be found at 134 Conn. App. 265 (2012).
The factual background: Does this sound familiar? An elderly single female homeowner with no immediate family befriends or is befriended by the man providing landscaping services at her home.
At some point she executes a quit-claim deed transferring her home to the landscaper. On the same day she executes a durable power of attorney instrument naming him as her agent for financial and health care decision making. Relying on the durable power of attorney instrument, the landscaper makes withdrawals from several bank accounts of the homeowner.
Both documents were signed in the presence of a Notary Public. The Notary Public signed both documents as a witness. The second witness to both documents was the landscaper.
Less than three months after executing both documents, the homeowner died. Her nephew was appointed as the administrator of her estate, and, in that capacity, he sought to invalidate the quit-claim deed and the bank account withdrawals.
Existing Connecticut law: Connecticut statutory provisions require that a deed conveying real estate be “attested to by two witnesses.” Connecticut statutory provisions concerning the execution of a durable power of attorney instrument contain similar requirements. The statutes do not expressly say that the grantee named in the deed or the agent named in the durable power of attorney instrument is precluded from being one of the witnesses.
Holding of the case: The Court states that the “use of subscribing witnesses…serves the purpose of assuring that the conveyance is genuine and not fraudulent”, and that “there is a more profound risk of a fraudulent conveyance if grantors and grantees are permitted to act as the statutorily required witnesses to their own deeds.” (p.274). Because the landscaper signed as one of the two statutorily required witnesses, the deed and the bank account withdrawals were invalidated.
Moral of the story: The elderly are particularly susceptible to overreaching and abuse, particularly those that are lonely and frail. The case creates an important safeguard for that vulnerable population.