Nature of the Case
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Facts
P and D are two of the six children of Ethel and Harold Allen, Sr. (Sr.). Sr., and Ethel owned a house and lived in that home for many years. Over the course of their marriage, Sr., and Ethel created numerous estate plans, which consistently excluded their two sons, D, and Lawrence, because Sr. and Ethel had provided for them through lifetime gifts. After Sr., died, Ethel continued this pattern. In late April 2001, Ethel began the process of moving from her Lexington home to live with one of her daughters. The judge concluded that Ethel had moved in by mid-July, 2001. Ethel executed a deed on July 23, 2001, conveying the house to D and to Ethel as joint tenants with a right of survivorship. Attorney Paul Maloy prepared the deed and signed a certificate of acknowledgment, dated July 23, 2001, which reads: “Then personally appeared the above named Ethel M. Allen and acknowledged the foregoing instrument to be her free act and deed, before me, [/s] Paul F. Maloy-Notary Public.” Maloy recorded the deed on August 10, 2001. On November 30, 2001, Ethel established the Allen Realty Trust and executed a deed conveying the same property to herself and P as cotrustees of the Trust, reserving a life estate for herself. She specified that the property would be sold upon her death and the proceeds divided among several of her descendants, including P. This deed was recorded on February 8, 2002. Ethel died on December 20, 2009. D, for the first time, reveal the July 23, 2001, deed. No one had discovered the July conveyance. P commenced the present action, disputing D's claim to the property. The judge found that Ethel's signature on the July deed was authentic. He determined that Ethel never appeared before Attorney Maloy to acknowledge the deed. The judge found that, instead, she had signed the deed in front of D, who then brought it to Maloy for his signature. D appealed.
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