When a loved one has diminished capacity, family members often discover that real estate deeds were signed under suspicious circumstances. In New York, Mental Hygiene Law (“MHL”) § 81.29(d) gives the guardianship court specific authority to void or set aside a deed or transfer made when the person lacked the capacity to understand the transaction or was unduly influenced.
At RK Law PC, we regularly represent families and fiduciaries in these proceedings, ensuring that vulnerable individuals are protected and that property is restored to its rightful ownership.
What Does MHL 81.29(d) Say about How to Set Aside a Deed?
MHL 81.29(d) empowers the court, in a guardianship proceeding, to:
- Void or revoke contracts, conveyances, or deeds executed by the incapacitated person while they lacked capacity.
- Set aside transfers made as a result of fraud, undue influence, or exploitation.
- Restore title to the incapacitated person’s name or to their estate.
Unlike traditional Surrogate’s Court proceedings under SCPA 2103 or 2104, this authority arises within the guardianship itself—making it a powerful and immediate remedy when real property has been wrongfully conveyed.
Common Scenarios Where it is Appropriate to Set Aside A Deed.
- Deeds signed shortly before guardianship proceedings – e.g., a caregiver persuades an elder to transfer the family home into their name.
- Transfers for inadequate consideration – property sold for $1 or “love and affection” without fair market payment.
- Deeds signed under confusion or coercion – the person did not understand they were relinquishing ownership.
- Suspicious notarization or execution issues – forged signatures or improper acknowledgment.
These red flags often emerge during the court evaluator’s investigation or during the initial guardianship petition process.
The Process of Setting Aside a Deed Under 81.29(d)
- Filing the Petition – The guardianship petition under Article 81 should specifically request relief under MHL 81.29(d). The petition should be filed, if possible, after you have obtained a determination that the person was incapacitated at the time the deed was executed. You may need to obtain a nunc pro tunc determination of incapacity
- Court Investigation – If the petition is filed before a determination of incapacity is made, then you can also ask that the Court Evaluator investigate the alleged transfer and report back to the judge.
- Hearing – Regardless of whether the petition to set aside the deed is filed before or after the determination of incapacity, you will need to have a hearing on the issue of whether the deed should be set aside. At the time of the hearing, evidence is presented showing incapacity, undue influence, or fraud at the time of the deed’s execution.
- Court Order – If the judge finds the deed invalid, the order will rescind the transfer and direct the county clerk to restore title.
This process is more streamlined than a separate civil action, though in some cases the guardianship court may direct the guardian to commence a Supreme Court action for ancillary relief.
Case Law Examples
- Matter of Mildred M.G., 43 A.D.3d 139 (2d Dep’t 2007) – Court affirmed voiding of deed where an incapacitated person transferred property under suspicious circumstances.
- Matter of Isadora R., 5 Misc.3d 1001(A) (Sup. Ct. Kings Cty. 2004) – Deed set aside where the transaction occurred during a period of demonstrable incapacity.
These cases show that New York courts are willing to intervene swiftly when deeds appear tainted by incapacity or undue influence.
Strategic Considerations in Determining whether to Set Aside a Deed
- Timing matters – relief under 81.29(d) is most effective when sought following the appointment of a guardian and following a determination of incapacity at the time of the transaction.
- Overlap with estate litigation – if the person dies, deed challenges may shift to Surrogate’s Court under SCPA 2103/2104.
- Proof requirements – medical evidence, witness testimony, and forensic document review may be required.
Frequently Asked Questions About Setting Aside a Deed Under MHL 81.29(d)
Yes. Under Mental Hygiene Law § 81.29(d), the guardianship court can void or set aside a deed if it was signed when the person lacked the mental capacity to understand the transaction, or if the transfer resulted from fraud, coercion, or undue influence.
Once the person passes away, the guardianship proceeding ends. At that point, challenges to a deed usually shift to Surrogate’s Court under SCPA 2103 or 2104, where the estate’s executor or administrator can bring a turnover proceeding.
Evidence often includes:
Medical records demonstrating incapacity at the time of signing,
Witness testimony about undue influence or coercion, and
Forensic document analysis if there are questions about signatures or execution.
Not automatically. While a court evaluator may flag questionable transfers in their report, it is usually up to the petitioner or guardian to request specific relief under MHL 81.29(d).
The timeline varies depending on the county and complexity of the case. In some instances, a deed can be voided at the initial guardianship hearing. In other cases, the court may require a separate evidentiary hearing. Acting quickly is critical to preserve the property rights at issue.
What Should I Do if I want to Set Aside a Deed?
If you believe a deed was wrongfully signed by an incapacitated person, don’t wait. Early action can prevent property from being lost forever.
📞 Contact RK Law PC today for a consultation about setting aside a deed under MHL 81.29(d). Our experienced New York guardianship attorneys are here to protect your family.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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