sec 4.2 Mental Capacity to Convey
Chapter 4. Capacity to Convey
Rule Text
In the absence of actual or constructive notice to the contrary, it is presumed that a grantor has mental capacity to convey. An adjudication of incompetency in a sanity or mental health case filed prior to June 3, 1977, pertaining to a grantor constitutes constructive notice of lack of capacity. Mental health cases filed on or after June 3, 1977, pursuant to 43A O.S. § 54.4 (now § 5-401) do not result in adjudications of incompetency. On or after June 3, 1977, lack of capacity must be established (I) in a mental health case filed prior to that date, (ii) in a civil action or (iii) in a guardianship proceeding.
If lack of capacity has been established, restoration may be accomplished by:
(A) MENTAL HEALTH CASES.
(1) Final order of the court having jurisdiction of a proceeding pursuant to 43A O.S. § 7-112.
(2) Final order of the court having jurisdiction pursuant to 43A O.S. § 111.
(3) Filing with the district court clerk in the original proceedings a certificate of restoration to competency pursuant to 43A O.S. §§ 7-110 & 7-111.
(B) GUARDIANSHIP PROCEEDINGS.
(1) Final order of the court of the county in which the person was adjudged insane or mentally incompetent pursuant to 30 O.S. §§ 3-116 (formerly 58 O.S. § 854).
(2) Final order of the court having jurisdiction discharging the guardian without appointing another guardian, 30 O.S. §§ 3-117 (formerly 58 O.S. § 855).
Authority: 16 O.S. § 53; Patton & Palomar on Land Titles §§ 336, 536 & 538 (3rd ed. 2003); Flick, Abstract and Title Practice § 3444 (2d ed. 1958); cf . Robertson v. Robertson, 654 P.2d 600 (Okla. 1982).
Comment: The definition of marketable title taken together with the presumption of competency in an action to cancel a conveyance recognized in Robertson v. Robertson, supra , justify a title examiner in relying upon the grantor of a conveyance being competent unless on actual or constructive notice to the contrary.
Under the Simplification of Land Titles Act, a purchaser for value from one claiming under a conveyance is protected from a claim of the incompetency of the grantor, unless the county or court records reflect such incompetency. See standard 29.1 et seq .
Amendment history: /P> Standard proposed by Report of Title Examination Standards Committee, 55 O.B.J 1817, 1818-19 (1984). Approved by Real Property Section, November 1, 1984, and adopted by House of Delegates, November 2, 1984. Citations to statutes in title 43A updated in 1987 by direction of Title Examination Standards Committee to reflect the complete recodification of the title by the legislature in 1986. Citations to statutes in title 58 updated in 1988 to reflect the complete recodification of the guardianship statutes by the legislature in 1988. Revision recommended by 1997 Report of the Title Examination Standards Committee to reflect the adoption of 16 O.S. § 53 relating to rebuttable presumptions arising from recorded instruments. 68 O.B.J. 3296 - 97 (10/18/97). Real Property Law Section approved the proposal, November 6, 1997; the House of Delegates adopted the amended standard, November 7, 1997. 68 O.B.J. 3707 (11/15/97). The 2020 Title Examination Standards Sub-Committee of the Real Property Law Section recommended the following editorial changes to the Title Standards as they appear on OSCN to bring the printed handbook and OSCN into conformity. The Real Property Section approved the proposal, and the House of Delegates adopted the amendment on November 13, 2020. ( superseded document available )