A friend of mine signed her home over to her 5 children equally, in a
quit claim deed.  During the deed signing, the lawyer verbally
expressed ? in front of all the children - that the deed contained a
life estate, and had my friend sign the deed.  (at the time of the
signing, my friend had been documented as having beginning stages
Alzheimer?s/Dementia)

The lawyer further confirmed that the deed had a life estate, in
written documents.  However, once the lawyer reviewed the deed, he
realized that life estate was not documented in the deed.

Also, the deed used was from a previous transaction, and the lawyer
overlooked deleting a reference to another state, and it also has what
the lawyer referred to as a scribner's error - uses the wrong gender
in the Grantor language.

Can this deed be contested? So, that the home can be put back in my
friend's name, without the children's signatures?

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Clarification of Question by ddczbs-ga on 16 Aug 2004 11:42 PDT

just to clarify. The state is Rhode Island. The lawyer did represent
my friend at the time of the deed signing, and since I have an
additional document (email) with the lawyer writing that the deed had
a life estate, and went on to explain what that meant...we might have
legal malpractice. Not sure what the lawyer will say.

Hi,

In what state is the real property that is subject to the deed
located?  Who did the lawyer represent in the transaction, your friend
or her children?  Is there any issue as to your friend's mental
competence at the time of signing, i.e., you say she was in the
beginning states of Alzheimer's, but did she possess sufficient mental
capacity to appreciate the legal consequences of her actions?  Are
there any facts to suggest the lawyer was in collusion with the
children?

Generally speaking, a deed, like any other contract, is subject to
certain "defenses to formation," which are legal arguments suggesting
that at the time of contracting some factual or legal circumstance
existed to merit a judge to find that a legally binding contract had
not been formed.  Some of these defenses to formation include lack of
capacity and fraud.  Arguably, legal malpractice is also a defense to
formation, i.e., if the lawyer represented your friend and the lawyer
committed malpractice by incorrectly advising her as to the contents
of the deed, that may be a defense to formation.  If the lawyer was in
collusion with the children and a fraud was committed on your friend,
that certainly is a defense to formation.  If she lacked capacity,
that is a defense as well.

I think you need to answer the questions I posed above and see if the
facts support any of these defense to formation.  If so, then your
friend could file a lawsuit in the county in which the land is located
to have the deed set aside based on one or more of the defenses.

FYI, a scrivener's error generally is not a defense to formation.

The childeren are actually contesting your friend's right to a life
estate in the property?  Why, becasue they want to sell it now? 
That's pretty low . . .

Oh, one more thing.  The fact the lawyer said that the deed contained
a life estate, in and of itself, is irrelevant.  A thing called the
parol evidence rule precludes the admission of contemporaneous oral
statements made at the time of contracting because contracts are
supposed to be construed based on the "four corners" of the contract,
i.e, the contract is to be interpreted from what is found within its
four corners.  An exception, of course, is when the contract is
ambiguous.  Here, we may have that ambiguity since these appears to be
a difference of opinion as to what the contract contemplated.

Another question:  what will the lawyer say when called to testify? 
Will he/she admit that he/she stated the deed contained a life estate?
 That's a key fact, because it goes to the issue of whether there was
a mistake made by the contracting parties as to the subject matter of
the contract, and "mistake" is another defense to formation.  If the
lawyer will admit he said it and your friend relied on it, that sounds
like a pretty good "mistake" case to me.