Thank you. So I understand from this that as a guarantor he did not have any right to the money - is that so? I am sorry to seem dense but this is the crucial point and I must be sure I have clearly understood it.
Do I also understand that even though the agreement was verbal it is still binding? Or, if he had no right to the money anyway, can I suppose that whatever he claims the agreement was it is not relevant?
If possible, I would still like to know how, given that the flat was in my son's name, my husband was able to transfer the money into his own name in the first place so he could easily access it. This - apart from the dishonesty - is at the root of the problem, because it meant for years he could simply help himself. I didn't query it at the time as I thought it was a matter of trust between my husband and our son.
When I wrote to him - (my ex-husband actually since we divorced a few weeks ago )- and said Robert was struggling and would he at least give him 20K back he said the money never was my son's. But it was a STUDENT loan - so I don't know how he can claim this. He went to see a property lawyer in 2006 when the flat was sold. I know the lawyer's name and that he works for a reputable company. But I never asked what went on. Now my ex-husband says he has been to another property lawyer - and named him - and he, my ex-husband, seems very confident we can't touch him. What could he have said to a lawyer to make him agree that my son has no claim to the proceeds of his own flat? What documentation/proof would a lawyer ask for?
My son and I have very, very limited means. I am 70 and had to give my ex-husband my share of the house in exchange for keeping my small pension as he doesn't have one at all, and my son is in Australia where his visa only allows him to work 20 hours a week in a bar. So I need to be very sure I have a watertight case before I embark on any legal proceedings. What is your opinion? The 'no win, no fee' lawyers don't seem to deal with this kind of case. Would Legal Aid be possible for my son as the matter would be raised in Edinburgh? even though he is currently in Australia - or is this not the kind of thing they deal with?
I look forward to hearing from you.
Thank you so much for this.
I'm sorry that for various reasons I have been unable to reply to you before now ( I was in Australia visiting family among other things.)
I contacted the lawyer I used for my divorce about this. She said ' the main thing Robert needs to explain/prove is why it was agreed that the money would go into an account in his father's name if it was agreed by everyone that the money was Robert's. And that it was definitely what everyone, including his father, agreed.
I told her your advice and pointed out that it was not unusual for parents to hold large amounts of money like this for their children -for obvious reasons - until they needed it as a deposit to get on the property ladder.
She seemed to completely dismiss all this and replied ' agreed the guarantor bit is totally irrelevant and the property belonged to Robert. It does not change my view re the proceeds and what was done with them. Robert would have to prove that his father agreed the proceeds were to be held in trust ( in my opinion)
So she thinks it is up to Robert to prove he didn't make a gift of this money to his father rather than up to his father to prove he had a right to it ...obviously I will not be using her again.
Since then, I have been unable to find an internet page that sets out the rights and obligations of a guarantor under Scots Law regarding the proceeds of the property. (I'm not very good at this kind of research) I should be so grateful if you could give me a link/website for this. It would be very useful for me to be able to send a copy when I am looking for a lawyer so I can ask their views. I can then choose a lawyer who agrees with your advice -- which is surely right.
Just one more thing that could be helpful for me to know in the future. When my ex-husband refuses to return the money - which he will -and my son is obliged to take the case to court - could his father be charged with theft? Because it strikes me that if you take money from someone without their knowledge and consent and then refuse to give it back - what else is this but theft?
If this is so, it may help persuade him that it is in his own interests to pay up.
Can I ask you if you have ever come across a case before where a father took money from his son?
Thank you so very much for your help - and so quick. I am really grateful. ( and of course will rate accordingly) My last question is what kind of lawyer should I look for - that is, one that deals in property? contract? - what is this called?
Many thanks again