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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3653
Experience:  Solicitors 2 years plus PQE
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Background: - Someone has defaulted on a mortgage abroad (EU

Customer Question

Background:
- Someone has defaulted on a mortgage abroad (EU country)
- Shortfall likely to be around £200,000
- The bank has sent a letter requesting full payment of the loan (but no actual court action)
- The person has no house, car or assets whatsoever
If the bank gets a judgement in their country and then a European Enforcement Order this will likely be in the form of a High Court Order in the UK.
As I understand it, you can't use a EEO to make someone bankrupt so only option is a high court order.
Possible problem:
The person changed a will (all done legally via a deed of variation with a solicitor) so they did not inherit a sum of money - the money went to a family friend instead.
Question:
If there was a high court order in the future what is the time limit where the person can be questioned about 'gifts' (using an order to obtain information). For example, if the question was "Have you made a gift of anything in the last 2 years?" and you made the gift 2 years and 1 day before then you could answer 'No'.
So, what is the time period that you have to disclose gifts?
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Hi,

Thank you for your question and welcome.

My name is AJ and I will assist you.

This arrangement (if at all) could be consider a preference or transaction at an undervalue. The time limits for these are contained in S.341 of the Insolvency Act 1986.

The time limits are going back from the day the bankruptcy petition is presented.

In the case of preference - it is 2 years from the date of the bankruptcy petition;
In the case of transaction at undervalue it is 5 years from the date of the bankruptcy.

However I do not think that disclaiming your right to an inheritance would be consider either a gift (so Transaction at undervalue) or a preference. Ultimately you are disclaiming something you do not own, therefore you cannot gift it to someone.

If the bank are generally asking you if you have made any gifts in the last two years, and the gift was made 2 years and 1 day ago, then of course you can say no to that. The same as if the gift was made 2 years and 6 months ago. The bank cannot conduct a fishing exercise, you only need to answer honestly.

I look forward to hearing from you.

Kind regards

AJ
Customer: replied 2 years ago.

Hi AJ,


 


Thanks for the reply - interesting. Just to clarify please:


 


In terms of the 'deed of variation' of the 'will' the person who made this was not insolvent at the time (and is not still insolvent now). However, because they have refused the money in favour of someone else could this be challenged by a court as a 'desire to put someone in a better position' as they were aware of a POSSIBLE impending action (although there was just a demand for repayment at the time and nothing since then - which is almost 12 months ago).


 


And in the case of an 'order to obtain information' for something like a HCO do the same rules about preference and gifting apply?

Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

What was the content of the deed of variation? Was it just to disclaim the interest?

Kind regards

AJ
Customer: replied 2 years ago.

Interesting point Alex.


 


As I recall it was to disclaim an inheritance in favour of a family friend. The family friend was also a 50% beneficiary at the time however the deed of variation meant that they inherited the full amount of the will.

Expert:  Alex J. replied 2 years ago.
Hi

Thank you.

I do not really see how that is classified gift. It is a disclaimer.

I just need to do some research to find out to what extent this can be challenged by a trustee in Bankruptcy.

Kind regards

AJ
Customer: replied 2 years ago.

thanks Alex.... look forward to your reply... cheers

Expert:  Alex J. replied 2 years ago.
Many thanks.

I will revert to you this evening.

Kind regards

AJ
Expert:  Alex J. replied 2 years ago.
Hi,

Thank you.

My apologies for the delay.

When the inheritance was disclaimed, was insolvency a realistic contemplation?

Kind regards

AJ