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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70506
Experience:  Over 5 years in practice
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My mother died 9 months ago. 7 years ago she gave my wife a

Customer Question

My mother died 9 months ago. 7 years ago she gave my wife a gift of £10,000 as she had worked constantly over 4 years whilst my father had paranoid dementia. She cared for both parents. Two Brothers were aware of the Gift but the 4th Son on gaining Power of Attorney found an old cheque stub in 2011 and assumed the gift was a loan.
Mum's Estate is about to be determined by the solicitors.
Could the Solicitors decide that the gift was a loan and demand it back?
How could I object?
Mum was fit and healthy and in her right mind.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Has your wife ever made any repayments?

Will the two brothers who are aware, support the fact that it was a gift?
Customer: replied 3 years ago.

No never any repayments. In fact my wife paid her care allowance into their bank account to help with their fees (approx. £5000)


 


Yes they have both written to the solicitors

Expert:  Jo C. replied 3 years ago.
Thanks.

A Power of Attorney ceases on death and therefore the fourth son has no authority any longer under the Power of Attorney

This will be dealt with however by the executors of the estate who may or may not be the same son.

Provided the two brothers will confirm that this was a gift and not a loan to be repaid, then the executors will have an uphill struggle in proving that it was a loan.

Even if it was a loan, because of the close relationship it would be necessary for the executor to prove that it was not a family arrangement but was “intended to create legal relations”. The courts will not usually get involved with informal family arrangements that have gone wrong. It is all too common for someone to make a gift and then, if the relationship goes sour, to claim that it was a loan.

It would not be for the solicitors to decide that the gift was a loan although there is nothing to stop them alleging that they should act on the say-so of the executors.

There is another issue which helps you and that is that this gift was made seven years ago and under the Limitation act 1986 the enforcement period for a debt is 6 years from when it becomes due and therefore if it was alleged to be a loan that time would start to run from when the loan was allegedly repayable.

The fact that there have been no repayments made over the last seven years also points to this being a gift and not a loan

Provided the two brothers will support your version of events, which is about as they will because they have written to the solicitors, there is no point in anyone taking this to court.

Can I clarify anything for you?

Jo
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Expert:  Jo C. replied 3 years ago.

Thank you for the positive rating and remember that I am always available to help with your questions. For future information, please start your question with ‘FOR JO C’. You can also bookmark my profile http://www.justanswer.co.uk/law/expert-remus2004/