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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9324
Experience:  I have been practising for 30 years.
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Here's a summary of the situation: - My mum has been caring

Customer Question

Here's a summary of the situation:- My mum has been caring for her parents since 2014. Her mum had dementia and passed away in March 2016.
- Mum is being accused of "undue influence" (by my Aunt and Uncle) over my grandfather with financial loans/help to his grandchildren
- As we understand it, the burden of proof will lie with mum to prove that my grandfather helped us of his own accord
- My grandfather has recently shown signs of dementia as well - although has been well and healthy historically
- My aunt and uncle have written to Natwest bank accusing my mum of fraudulent behaviour. The bank has responded saying they are not concerned about any activity (my grandfather once gave verbal confirmation on the phone to Natwest to sanction a transaction to me).
- I have a letter from my grandfather dated 2012 - 2 years before mum moved there - when he first loaned me money, to say if I needed more help financially, I could ask.We'd like to know what kind of evidence we'd need to put forward if the burden of proof is on mum.Thanks
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Have they just made these accusations verbally or in writing or via solicitors?

I assume that your grandfather is still alive?

This help that he has given, what kind of value is it and are they loans or gifts?

Would be the total value of your grandfather’s estate when he eventually dies, property, savings et cetera?

Could it be the case but your grandfather and grandmother were looked after by your mother and hence they looked after you and because your aunt didn’t have much to do with her parents as they got older, they are now jealous?

Customer: replied 1 year ago.
Accusations over email and phone.Grandad is still alive, yes.A mix of loans and gifts - my grandfather was always of the opinion he didnt need the money, I always I would pay him back - he said ok but when I could, no rush. Loans are in the process of being paid back. Approx £50k to me.Their entire estate would be well over £500k not sure by how much more.They are jealous yes, that we have had help, but their children haven't. But their children have never asked becuase my aunt and uncle are very well off. But the things they have said pertaining to that is all anecdotal - nothing written. They were incensed that mum has an insurance policy in her name (a solicitors suggestion) and this is what sparked it all off.She quit her job and sold her home to look after them and never took a wage from them. She's also increased income by 53% since being there and all bills etc have been paid on time.I'm not sure how we can disprove undue influence if it was all done over the phone. The only written evidence I have is that letter from 2012 - 2 years before mum moved in with them.
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
I dont mind whether the advice is over the phone or via message here. My number is ***** if needed.
Expert:  F E Smith replied 1 year ago.

Thank you. Let’s just continue on here for now and if you want to speak on the phone, I will submit a premium services proposal for you, for which there is an extra cost.

Meanwhile, can you please tell me exactly what they are threatening by the emails and telephone calls?

You say that your grandfather has shown signs of dementia. Do you mean that he has good days and bad days and would he be capable of saying, to a solicitor for example (if he was left on his own with that person) that he knew how much he had given and that he had given it quite willingly because of all the things that had been done for him and his wife?

Customer: replied 1 year ago.
On the phone they have been saying they want to "protect" my grandfather from my mum. Although since all of this kicked off in March they haven't been to visit him once.They're accusing mum of undue influence over bank transfers. Saying that since she was there, her children have had a lot of money - while their children have had none. It's true that we have had help from him - but neither my mum or dad work. My aunt and uncle are very well off. Also, we have asked for help, their children have not.My uncle is saying that grandad always said that it was the parents job to help their own children. There is no evidence of this other than my uncles word. However, I have the letter from my grandad, handwritten and signed.Yes, my grandad could speak to a solicitor but I doubt he would know how much he'd lent us off the top of his head. But he's always been like that with money - he is very upset at the allegations against mum and would definitely make a statement.
Expert:  F E Smith replied 1 year ago.

If you can get your grandfather to speak to a solicitor, on his own, without any of you present, on one of his lucid days, where he would admit that he freely gave all this money but hasn’t got a clue how much it was but it was a substantial amount, that would be fantastic. I would keep that information that the solicitor would have on file in reserve in case there are ever any court proceedings.

My suggestion would then to be simply ignore everything they complain about and are saying and if they feel so strongly about this, let them issue legal proceedings. If they continue to bombard you with emails and phone calls, simply ask them to stop, and if they don’t stop, call the police and ask the police to warn them under the Protection from Harassment Act. They cannot simply keep bombarding you with accusations. They either have to issue proceedings or shut up.

Alternatively, the solicitor can write to them telling them of his findings when he met your grandfather and that he was quite lucid and clearly understood everything that had gone on and there is no allegation of undue influence.

At this stage in time, what the complainants would be looking at is an allegation of abuse of a vulnerable adult if someone was getting grandfather to pay the money and he either didn’t know what he was doing or pressure was being put on him to do so. If someone took money from the account, without grandfather’s consent, then it’s theft. I appreciate none of that applies here but I’m just telling you what the allegations actually are. They are both police issues although the complainants would probably be better starting with social services. I’m letting you have this for your own information of course.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It is an important part of the process by which experts get paid.

We can still exchange emails if you wish.

Best wishes.

PS. Invite them to come and see grandfather on his own and then he can tell them in his own words.

Customer: replied 1 year ago.
Thank you for this. I'll indeed rate you shortly.How important is the letter from my grandfather to me in all of this? My uncle states that he believes the grandparents would not help the grandchildren. But this isn't the case. It was sent to me 2 years previous to mum moving in with them. His exact words are "if you ever need more, just scream and we will do our best to help".
Expert:  F E Smith replied 1 year ago.

Provided there is no allegation that your grandfather was not in good mental health when he wrote the letter, it’s useful.

Matters like this are decided on the balance of probabilities and hence, your version of events only has to be slightly more believable than the complainants and who would succeed in court. You have this letter saying that you could have help and they presumably do not have any such letter. Your argument would be that you screamed and they helped. However there is one little phrase in that which is quite powerful and that is “if ever you need more” which implies that they had given you help and they were happy to give you more. I think that little phrase is probably the most important in the letter.

F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you that's very helpful. I just rated you 5 stars.One last question, if the worst came to the worst and they won in court, could mum get sent to prison?
Expert:  F E Smith replied 1 year ago.

I am pleased to have helped. In very extreme cases it is potentially possible but from what you have said, I think that she probably has more chance of flying to the moon next week.

Customer: replied 1 year ago.
Ha! Well good - thank you again.
Customer: replied 1 year ago.
There have been developments - am I allowed to ask more questions or do I need to put another order in?
Expert:  F E Smith replied 1 year ago.

If it’s on exactly the same subject, you can ask on this thread and there is a facility to pay a voluntary bonus (entirely voluntary) which is always appreciated.

If it’s on a different matter altogether however it’s better if you open a new thread.

As you say it’s a development, continue on here and if you’re happy with the advice, just use the bonus facility.

Customer: replied 1 year ago.
OK thank you.One of the things my aunt and uncle are arguing is that my grandad hasn't been in 'right mind' for a while now - saying he is suffering from vascular dementia. They are citing things like him buying expensive persian rugs (he's collected them for decades, having worked in the business) as well as the help to the grandchildren.The solicitor once said to mum a couple of months back that he didnt think she would get power of attourny if she applied now because he didnt need it.So, wanting to block this accusation, mum wanted to speak to grandad's doctor and get him to write a letter to say that he's been in right mind. However, when she went to see him, he said that all of grandad's records were siezed by some investigator who was accompanied by the police. He can't give a statement now. So it seems like a lot will depend on what this investigator says.I am unclear on the details of "undue influence" but I've read a paper that says that if its proven that he is/was of not of sound mind, then mum wouldnt get a chance to defend herself because it would be presumed there was undue influence.My grandad should be seeing his solicitor next week to make a statement but if some expert says that his records suggest vascular dementia wouldnt his statement be disputed?We're a bit at a loss of the implications of all of this.
Expert:  F E Smith replied 1 year ago.

Everyone has a chance to defend themselves.

The doctor will give your mother the patient records anyway because they are confidential to your grandfather.

Just because he may have vascular dementia doesn’t necessarily mean that he wasn’t in control of his faculties when he did whatever he was doing. People very often have lucid days and other days where they literally don’t recognise anyone.

This would hinge on the solicitor’s evidence and any medical evidence produced to the court.

Customer: replied 1 year ago.
OK thank you.
Expert:  F E Smith replied 1 year ago.

A pleasure to assist.

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