What Went Wrong is our series on real, published cases. Each entry follows what the documents said, what the court did, and what it teaches. Every quotation comes from the court’s own opinion. These are other parties’ cases, not our clients, and they predict nothing about any reader’s situation.
People ask us almost weekly whether they can prepare their own deed from a template and save a few hundred dollars. Here is a published Florida appellate case that answers the question better than any warning we could write, because the mistake at its center is exactly the kind a template invites, and fixing it took a bench trial, dueling expert witnesses, and an appeal.
The setup
A son owned a Miami-Dade property and deeded it to his mother using an enhanced life estate deed, the instrument everyone calls a lady bird deed, so that she could take out a reverse mortgage. The deed and the mortgage were recorded the same day. So far, an ordinary plan.
The problem lived in one word. Paragraph six of the deed was supposed to reserve the lifetime powers, including the power to mortgage, to the grantee, the mother. Instead it said grantor, the son. Read literally, the deed gave the son exclusive control of a property he had just deeded away, exercisable without the consent of the remainder person, who was also the son. As the Third District Court of Appeal later put it, the original wording meant the son “can act without the joinder and consent of the remainder person (also Hirschenson), which is nonsensical.”
The fight
Nobody noticed while the mother was alive. She took the reverse mortgage, the years passed, and she died. The bank moved to foreclose, which is how reverse mortgages end when the borrower passes away.
And then the one wrong word became a litigation strategy. The son opposed the foreclosure by arguing that, under the deed’s literal text, his mother never had the power to mortgage the property at all. The typo that gave him powers he was never meant to have became his defense. Whoever drafted that paragraph had handed a family member a loaded argument, one that sat in the county records for years waiting to be picked up.
It did not work, but look at what it took. The trial court held a full bench trial. Both sides brought expert witnesses to argue over whether the deed was ambiguous. The person who prepared the deed had to testify, under oath, that “a mistake was made by incorrectly inputting ‘grantor’ instead of ‘grantee’ in paragraph 6.” The court weighed the deed’s own title, the nonsensical consent loop, the fact that the deed recited the property was not the son’s homestead, and the same-day recording alongside the mortgage. It then reformed the deed, a court order rewriting the word, and entered judgment for the bank. The son appealed. The Third District affirmed, finding “competent substantial evidence to support the trial court’s findings regarding the ambiguity of the enhanced life estate deed and the subsequent reformation of the deed.”
What it teaches
Courts can fix a drafting mistake, but a lawsuit is not a proofreading service. Reformation exists for exactly this situation, and here it worked. It also required a trial, experts, testimony from the drafter, and an appellate opinion, years of fees and uncertainty spent repairing one word. Every dollar of that was cheaper to avoid than to spend.
The danger is not only that a bad deed fails. It is who gets to exploit the failure. The error here was not exploited by a stranger; it was raised by the family member the plan involved, after the person who could have explained the intent was gone. Drafting errors surface at the worst moment by design, because that is when the money is on the table.
Swapping grantor and grantee is a template-class mistake. These two words differ by three letters and appear dozens of times in a deed. Fill-in-the-blank forms and copied precedents invite exactly this substitution, and no template warns you that paragraph six now contradicts the title of your document. A drafter who reads the instrument line by line, asking whose power each clause serves, catches it. Software that merges names into blanks does not.
A deed should not need a panel of judges to say what it means. The lady bird deed earned its popularity honestly, with probate avoidance, full lifetime control, and Medicaid friendliness. Ours run $399, drafted and reviewed by an attorney who litigates these documents when they go wrong, which is precisely why we are unwilling to let one leave the office with an unexamined paragraph six. If you are weighing the template route, read our guide to what a valid lady bird deed must contain first, and bring the hard questions to a free 30-minute consult.
The case. David Louis Hirschenson v. Compu-Link Corporation of MI, No. 3D22-1960 (Fla. 3d DCA Sept. 6, 2023). Quotations are from the court’s published opinion. The parties were not clients of this firm, and every case turns on its own facts.
Related Guides
- Florida lady bird deed guide
- What a valid lady bird deed form must contain
- Can a lady bird deed be contested?
- Lady bird deed pros and cons
Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. This article is general information about Florida law, not legal advice, and does not create an attorney-client relationship.