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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9436
Experience:  I have been practising for 30 years.
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Does cancellation of debt have to be signed by themail

Resolved Question:

Does cancellation of debt have to be signed by themail lender
Submitted: 12 months ago.
Category: Law
Expert:  Jo C. replied 12 months ago.

Can you explain your situation a little more?

Customer: replied 12 months ago.
Mother lent money, lawyers etc & mother intended to cancel. All treated loan as cancelled then when she died realised they had not formally cancelled, thought they had made mistake & resurrected loan to protect themselves.
Expert:  Jo C. replied 12 months ago.

sorry but I'm not sure what you mean? How could they cancel a loan if she had the money?

Customer: replied 12 months ago.
Sorry, mother lent to me then intended that it be cancelled as also advisers. Thought they had made mistake when she died and alleged it was still owing to her. For 10 years or so treated as forgiven but after death it was resurrected. I even have the note from prof adviser telling lawyer it was intended that it be forgiven 10 yes before and then the lawyer telling adviser he had done it wrong. Thought loan was under seal when it wasn'the.
Customer: replied 12 months ago.
I should perhaps add that implications were huge whether under seal as lawyer thought or not.
Expert:  Jo C. replied 12 months ago.

Ok. I think this is an equity question so I will pass this onto somebody who can help with it.

Customer: replied 12 months ago.
Lawyer & prof adviser needed debt under seal & did not disclose it was not under seal
Customer: replied 12 months ago.
Thank you
Expert:  F E Smith replied 12 months ago.

Is this in Scotland?

Just let me clarify the facts.

Your mother lent you some money which was intended to be repaid.

She then changed her mind and said she didn’t want repaying.

That was never dealt with formally.

Lawyers dealing with your mother’s estate are now saying they want it repaid?

Is that the situation?

Customer: replied 12 months ago.
English law
Loan never actually meant to be repaid (too complex to explain) but it was also "intended to be forgiven" (the words used by professional adviser) as I have found was said and is recorded in lawyer's note of conversation with professional adviser. Forgiveness understood by prof adviser,mother, and myself. Subsequent conduct by prof adviser/mother/self as if any debt that had existed was forgiven. Lawyer then told prof adviser was not properly forgiven which, if correct, would have created huge problems . Prof adviser made a complete mess of mother's affairs and lawyer (my mother's allegedly) told him so and then advised him how to avoid liability to me when she died. Inter alia, this involved alleging the money was still owing which may be more than a bit naughty but difficult to prove fraud. So alleged loan was "re-invented" by prof adviser and though not necessary to re-pay with actual transfer of funds, there are other implications (7 years from gift) so whether it could be forgiven without my mother actually signing off document is what matters. There is evidence it should have been forgiven, and whether it could have been forgiven becomes the relevant issue. It was understood to be forgiven and the fact it was believed to be forgiven affected many other matters which is why lawyer and prof adviser wanted to resurrect it because, in principle, both would have had large potential liability if it had not been forgiven. This is not the only matter that was a problem and several other complex issues were not disclosed by them, the real problem coming with a will that was executed by my mother when there was believed to have been a forgiveness and there were inter vivos gifts to others based on loan not existing anymore.
Expert:  F E Smith replied 12 months ago.

Thank you. Whether this is enforceable in law comes down to whether this was an informal family arrangement meant to create legal relations (that is the legal terminology) or whether it was an informal family arrangement .

Your mother lent you this money on the basis that it would be paid back one day and then, for whatever reasons, she decided that you could have the money and it was to be treated as a gift.

If the money was lent to you under the terms of a written agreement, then it would be necessary in most cases for there to be a cancellation of the debt also by written agreement. The only way to cancel a deed for example is with another deed which is a deed of cancellation.

In matters like this whether the loan was cancelled and deemed to be repaid (forgiven in old English law) would come down to what evidence there is one way or the other. These matters are decided on the balance of probabilities and hence, you would only need to convince a judge that there was a slight chance more that the debt had been cancelled than the was that it was still repayable.

If you have a note from professional adviser telling a lawyer that it was intended to be forgiven, that would be enough to swing the balance in your favour.

Can I clarify anything for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

I can still clarify things for you.

Best wishes.

FES.

Customer: replied 12 months ago.
I note you have the same name and initials as Lord Birkenhead (are they the real ones?) and whilst I have not given you every bit of information about a very complex matter, the information you have given me is largely as I expected, if not better. I was asked to sign an acknowledgement of loan, in my view to get the professionals off the hook after they thought they had made a catastrophic mistake. I was told the relevant piece of paper I signed was a deed of covenant; it wasn't. More than 30 lawyers and trust professionals missed that one! I was told it would be of no effect on me because my mother was very ill indeed, thought unlikely to survive for a few days and was said to have executed a codicil (referred to immediately in a note to her partner as "wobbly" and that she wanted to re-do it) in circumstances where I thought my mother was actually in intensive care and did not realise the lawyer was going to see her before recovery, forgiving all indebtness of her sons when in fact any indebtedness had been long cancelled and arrangements were made in respect of her affairs that were based on a cancellation of any debt, if there ever was any, years earlier, and completely false assumptions in respect of the value of her assets and the division of her estate. Example is that I was "eliminated" as a beneficiary of a trust, only to be said to be a beneficiary after my mother's death having denied me any information on the trust for 8 years during which £5m disappeared. Am I allowed to ask where you practice and possibly give you instructions? This does involve an offshore jurisdiction but the point I have asked you about is an English Law matter which is relevant in respect of a number of issues. The codicil could in my view have been challenged had all information now known to me been available (far from "wobbly" it bore no resemblance to proper signature and the doctor who witnessed it called me and said he was unhappy about having signed the codicil as a witness) . My mother was 92, lost capacity on this hospital visit, and the forgiveness bombshell was dropped on the lawyer who was already under attack by me and my elderly mother for failing to properly advise, as were the professional advisers. They stitched me up instead! I had advised the lawyer of my mother's loss of capacity before the codicil was allegedly signed,but who can normally contest a codicil witnessed by lawyer and doctor without the most damning evidence available to them? I have given 5 stars because I think your answer was carefully considered on the information I gave you and think you did rather better than many other lawyers who have had rather more information to go on, albeit the "intended" forgiveness point only surfaced very recently.
Expert:  F E Smith replied 12 months ago.

It’s purely a coincidence. Well spotted.

I am pleased that the answer is what you expected.

I’m based in North West but this isn’t something I could take on view at present. For logistical reasons, you would be better finding a solicitor that deals with contested probate and estate matters within a reasonable driving distance.

You’re absolutely right contesting the code is still which has been witnessed by solicitors is not particularly easy. It can be done but not easy at all.

Thank you for the 5 star rating.It isn't showing yet but I'm sure it will do.You need to use the rating button please.

Customer: replied 12 months ago.
I may be a layman but my father was an English silk, my grandfather a Commonwealth Attorney-General so though I am now getting on in age my youth was steeped in the law.Up in the North West old values, I would guess, still prevail.
Expert:  F E Smith replied 12 months ago.

How interesting.

In the north-west, old values sometimes prevail although sometimes I wonder!

F E Smith, Advocate
Category: Law
Satisfied Customers: 9436
Experience: I have been practising for 30 years.
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