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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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I have been recipient of gifts from my grandfather (he is

Resolved Question:

I have been recipient of gifts from my grandfather (he is still alive but his mental capacity is being questioned by my uncle).
If the gifts are to be set aside, (around £50k over the years) how does this work in terms of repayments? I dont have the lump sum and I am in an overdraft. I run a small limited company that is also in a small overdraft but cash flow issues are being resolved.
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

How long have these gifts been made over?

Do you have power of attorney over your grandfathers affairs?

How long has your grandfathers mounted capacity been in question for?

Is there any allegation that you coerced your grandfather to give you this money or you took it yourself or that he didn’t know what he was doing over the full period of the gifts

Customer: replied 2 months ago.
Since 2012 - the first gift was to help me with my business and he also sent a hand written letter which said he was happy to help and would give more if needed.There's no allegation that I coerced him but my uncle has accused my mum who cares for my grandma before her death in March, of financial mismanagement and is seriously questioning my grandpa's decision making abilities.No one has power of attorney over him.
Expert:  F E Smith replied 2 months ago.

Generally, the only way that your uncle would be able to set any of these transactions aside is if he could prove that your grandfather didn’t have the mental capacity to make the decision to give you the money.

Your uncle may not be happy with the fact that your grandfather gave you the money and your grandfather may not have made the right decision to do so but, provided he does have the mental capacity to make those decisions, he is free to do with his money he wishes.

Your uncle is going to have to come up with some medical evidence which proves that your grandfather was suffering from some kind of mental incapacity at some stage from 2012 onwards. There is not much likelihood of him doing that, then it’s unlikely that his claim is going to succeed.

If there is an order from the court for you to repay, how that would be enforced would depend on what financial assets, savings, and income you have.

Can I clarify anything for you?

Please rate the service positive. It’s the process by which experts get paid.

We can still exchange emails. Best wishes.


Customer: replied 2 months ago.
my uncle is constructing a case to try and prove that. He has had my grandpas medical records seized and they are with a specialist now. My grandpa is now showing signs of what could be vascular dementia - my uncles argument is that grandpa has been showing signs for years that in hindsight he is only recently realising.For example, my grandpa sold a house at a lower market price a few years ago. My uncle says this is an example of poor financial decision making. The reality is that he and my grandma wanted out of that street ASAP because of a neighbour they had an issue with. But I'm not sure how we prove this.Another is my uncle pointing to my grandpa spending £20k on a Persian rug. But my grandpa can afford to do that, he collects them and worked in the industry as his career.
Expert:  F E Smith replied 2 months ago.

Thank you. He may have been showing signs for years depends what’s on the medical records.

Selling the house may have been poor financial decision-making but then again, gamblers show poor financial decision-making but they don’t necessarily like mental capacity. People get financially conned on the Internet and that shows poor financial decision-making they don’t necessarilylack mental capacity.

Because your grandfather may be extravagant and likes Persian rugs once again, doesn’t mean that he lacks mental capacity.

As I said earlier, it will hinge on the medical records.

Customer: replied 2 months ago.
Ok thank you. And if they show that he was suffering from early signs, where would that leave me? Would it automatically mean all gifts are set aside? And if it does show he had early signs does that mean his financial decision making abilities are impacted negatively?
Customer: replied 2 months ago.
Also, under what circumstances could I be made bankrupt? My aunt took great pleasure in telling my mum that she would go to prison for 3 years and I'd go bankrupt over this. If I'm willing to make payments back, if it's deemed the gifts are to be set aside, could I still be made to go bankrupt? I'm the sole director of a ltd company which is my only source of income and I have 2 young children to support.
Expert:  F E Smith replied 2 months ago.

It doesn’t mean that all the gifts are automatically set aside. These matters are decided on the balance of probabilities and hens it depends on whether your grandfather’s mental capacity would have led to him making these gifts which he would not have the wise done.

It would be for a doctor to decide whether it impacted on his financial decision abilities.

There would only be a potential prison sentence for anyone if it was possible to prove theft or fraud.

You would only be made bankrupt if there was a court order to pay and pay and whoever was pursuing you decided to petition for your bankruptcy.

If you were made bankrupt, the trustee in bankruptcy may or may not be interested in the limited company depending on whether it has any value to sell on the open market or whether it is no use without you. You would need the court permission to carry onas a director of the company in that case but that would be dealt with as part of the bankruptcy proceedings. It does mean however that once you have been made bankrupt, that’s the end of it and the uncle will not get any money.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
F E Smith and 2 other Law Specialists are ready to help you
Customer: replied 2 months ago.
OK thank you, ***** ***** it.

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