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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100053
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I'm wanting to know if my brother who was given a gift deed

Customer Question

I'm wanting to know if my brother who was given a gift deed by my parents, (well actually my mom because my dad was diagnosed with Alzheimer's and couldn't make any decisions) to the land they (my mom now, my dad has passed away) own, and my mom is still paying for. Does this mean it belongs to him or not until my mom passes away? And if it is his, how can we get him to pay for it and not my mom?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello and welcome to JustAnswer. Please note:
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I am sorry to hear about this situation.
Overview
A gift deed normally means that someone is given a gift interest to the property. Yes, if they gave him 100% of both of their interests, he now owns it, while the mother continues to be responsible for the mortgage (actually, I am surprised that the transfer of interest to him did not trigger an acceleration clause in the mortgage - most mortgages have this clause; the lender may simply not be aware of what has happened).
However
If she had Alzheimer's, then she or an interested party such as a legal guardian for her can attack the transfer from her as unlawful, citing that since she had no ability to understand the contract at that time, that it was not binding. The Court will hold the transfer from her as binding if the Court finds that "had the mental capacity to contract if she appreciated the effect of what she was doing and understood the nature and consequences of her acts and the business she was transacting." Mandell and Wright v. Thomas, 441 SW 2d 841 - Tex: Supreme Court 1969 citing Missouri-Pacific Ry. Co. v. Brazzil, 72 Tex. 233, 10 S.W. 403 (1888); 17 C.J.S. Contracts § 133(1)a; 13 Tex.Jur.2d, Contracts, § 10.
However, the transfer is PRESUMED to be lawful until/unless successfully reversed in court no grounds of lack of capacity.
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