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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33326
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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I am one of three (only) brothers and our mother has died.

Customer Question

I am one of three (only) brothers and our mother has died. She was a widow . Before she died she lent a large amount of money to one of my brothers (several thousand pounds). To achieve this she took on a mortgage on her home. Nothing was written down but people , family members etc., generally know about it. One of her last wishes (and it always was her wish) was that upon her death and the settling of her estate he would repay this money from his share in the house when it was sold (that is to say two thirds of it) . This money (two thirds of the money he loaned) was then to be shared equally between my other brother and myself so that overall we have all received the same amount of money. Other than asking her bank if there was a direct transfer between her account and my brothers (He was living in America at the time) there is nothing i can think of to prove that she loaned him this money i do not know if he will be willing to own up to this loan and pay the money back , he has not said he won't. Unfortunately myself and my other brother have fallen out with him completely and do not wish to talk to him. In the event that he tries to not pay back the money when we sort out the probate , which we are doing presently, is there any way to force him to pay back the money? Do we have to try and find a way of getting him to admit it? And if so do we have to get him to write it down? Would proof of the bank transfer be enough? (He used the money to pay his bank in America.) Would statements from other people be any help? What can we do to make sure he cannot weasel his way out of paying back the money he loaned from my mother?
We are all (The three of us) equal beneficiaries and joint executors. What would be your best advice?
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
When did this actually happen an dhow much is involved?
Who are the Executors of the Will?
Clare
Customer: replied 2 years ago.

The loan was around 2006. The amount was between £15,000 and £25,000. My mother's death was in 2009 and we are all (the three of us) joint executors

Expert:  Clare replied 2 years ago.
Hi
What is the date of the latest Will?
Clare
Customer: replied 2 years ago.

June 2006

Expert:  Clare replied 2 years ago.
Hi
So it was made at around the same time as the loan - but doe snot refer to it at all?
Clare
Customer: replied 2 years ago.

Not entirely sure but I would guess it doesn't , because before her death she made a point of asking me to make sure he paid back the money after she was gone. I don't think she would have said this if it was in her will anyway. She only made three requests and that was one of them. I will have to wait until i get a reply from the will writing company

Expert:  Clare replied 2 years ago.
Hi
I am afraid that if she made the Will after she made the loan but did not refer to it in the Will it is likely that you will struggle to prove that she meant that this should be repaid to the estate.
You will then have to balance whether it is worth the legal fees in pursuing the matter (which will be payable by the estate) when there is no guarantee of success
Please ask if you need further details
Clare
Customer: replied 2 years ago.

The will was made around June and I have two documents which very much suggest that the loan was made between mid-October and mid-December which would mean the loan was made after the will , again this would require me to wait for confirmation. If this was the case how would that affect the situation?

Also , if he was at some point willing to own up to this loan and pay the money back, he has not said he won't , at that point is there something we should try to get him to sign?

Expert:  Clare replied 2 years ago.
Hi
The time delay has not helped here as recollections will be confused.
Unless there is clear written evidence that your mother wanted it repaid then it could be an uphill battle to prove that it was a loan and not a gift.
However that does not mean that you cannot do so - just that it could be a costly exercise.
Obviously written confirmation from your brother that he expects that he has to repay the estate would solve the problem
Clare

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