McKoy v. DeSilvio, — So.2d —-, 2008 WL 343255 (Fla. 2d DCA Feb 08, 2008)
Inheritance disputes usually play themselves out in one of three forums:  trust litigation,  probate litigation and  real property litigation. The linked-to case provides solid guidance on the real-property-litigation front by addressing two frequently-litigated points involving contested deeds:
What counts as valid consideration?
One way to challenge a deed is on lack-of-consideration grounds: it’s an indicator of undue influence or lack of capacity. In the linked-to case the trial court granted summary judgment invalidating a contested deed in part on lack-of-consideration grounds. The 2d DCA reversed the trial court’s ruling on this point reminding us that when it comes to weighing consideration, it’s the thought that counts, not the dollars exchanged:
Both deeds recited “consideration of the sum of $1.00 and other good and valuable consideration.” In the quiet title action, DeSilvio alleged that the deeds failed for lack of consideration. There were disputed issues of material fact on this issue. See Diaz v. Rood, 851 So.2d 843, 846 (Fla. 2d DCA 2003) (stating that “a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do”) (citations omitted). Notwithstanding, the circuit court ruled that the deeds were void due to a lack of consideration. In granting DeSilvio’s motion for summary judgment on this ground, the circuit court erred. See Fla. R. Civ. P. 1.510(c) (directing that summary judgment shall be granted only when the record evidence shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”); see also Holl v. Talcott, 191 So.2d 40 (Fla .1966). Accordingly, we reverse on this point.
Is failure to properly execute a deed fatal?
The second issue on appeal was whether a deed with only one subscribing witness was fatally flawed. The trial court said yes and the 2d DCA affirmed. From a probate attorney’s viewpoint, what’s interesting about this portion of the linked-to opinion is the reference to a remedy for such cases that is NOT available when the grantor is dead:
Our reversal affects only the Herron deed, however, because the Earnshaw deed suffers from an additional deficiency. As alleged in DeSilvio’s motion for summary judgment, the Earnshaw deed contained the signature of only one subscribing witness. As to this deed, the summary judgment was also based on the undisputed fact that the deed was not signed by the requisite number of subscribing witnesses. See § 689.01, Fla. Stat. (2003) (requiring presence of two subscribing witnesses to convey real estate).
The McKoys claimed that the notary also acted as a subscribing witness. But she did not sign the deed as such, and the McKoys did not file a counterclaim seeking to reform the deed. See Smith v. Royal Auto. Group, Inc., 675 So.2d 144, 153-54 (Fla. 5th DCA 1996) (stating that reformation action may be used to supply missing signature). In any event, any such action would have required that the original grantor be joined as an indispensable party. See Palm v. Taylor, 929 So.2d 566 (Fla. 2d DCA 2006) (reversing judgment reforming deed when claim was not raised until amendment of complaint during trial, over objection, and when original grantor was not party to suit). Therefore, although we reverse the summary judgment as to Herron’s deed, we affirm the summary judgment as to Earnshaw’s deed.