The Plaintiff in the recent unpublished Michigan Court of Appeals decision Fraki v. Fraki shared a joint tenancy with right of survivorship in certain property with his mother. A joint tenancy with right of survivorship gives equal rights of the parties to enjoy the land during both of their lifetimes. In addition, upon the death of one of the parties, full interest in the property vests in the surviving party.
In Fraki, the mother later transferred ½ of her interest in the joint tenancy to her other son by executing a quitclaim deed. This created a joint tenancy with right of survivorship between the mother and her other son in the interest she held in the joint tenancy with the Plaintiff.
The Plaintiff protested the transfer his mother had made, claiming that the transfer was not valid for several reasons including: 1) the quitclaim deed was not notarized and 2) she could not transfer her interest in a joint tenancy with right of survivorship to a third party.
The Michigan Court of Appeals rejected both of Plaintiff’s arguments, in addition to finding that the transfer was not invalid because of undue influence.
1) Lack of Notarization on Deed Does Not Necessarily Defeat Transfer
There are certain formalities that are required in executing a deed. Among these formalities is a requirement that deeds that are executed be notarized. MCL 565.8. The mother in Fraki failed to have the deed notarized as required under the statute and instead had two witnesses present when she signed the deed.
While the failure to have the notarization could have prevented it from being valid, another Michigan Statute allows a defective deed to be cured. MCL 565.604 provides a curative provision to cure defects in a deed when the deed is 1) made in good faith, and 2) conveyed upon valuable consideration. Since the Court found both of these elements to have been satisfied (or at least no evidence from the Plaintiff that they were not satisfied), the Court found that the defect in the transfer of the deed was cured.
2) Interest in Joint Tenancy with Right of Survivorship Transferable
In Michigan, a party’s interest in a joint tenancy with right of survivorship is transferable. However, for the purposes of determining right of survivorship for the whole property, the measure of survivorship is based on the lifetime of the original parties.
For example, in Fraki, the son that was transferred half of the mother’s interest in the joint tenancy will have a right of survivorship of the whole property only if 1) his mother outlives Plaintiff and 2) he outlives his mother. If the mother however, dies before the Plaintiff, interest in the whole property will transfer to Plaintiff and the other son will no longer have any interest in, or right to possess any part of, the property.
If you have any questions, please contact the attorneys at Demorest Law Firm, PLLC.
