Can I recover this money?

[Worried1978]

Hi,

 

I lent my son and his then partner (not married) £10k as a deposit to buy a house in 2014. A verbal agreement was reached between all 3 parties that once they were in the house, I'd give them 9 months grace and then they could pay the £10k back at £150 per month (between them).

 

My financial advisor produced a very short document which stated the £10k was a gift to both parties. This was signed by both parties. However it is very important to note that despite this it was always very clear the £10k was a loan not a gift. I did not sign this document nor was I requested to. I do not know the whereabouts of this document now and neither does my son.

 

The 9 month mark came and my son and his partner both set up monthly direct debits which deposited £75 (each) into my account.

 

At 12 months they separated and approx. 4 months later sold the house and were left with £3000 'profit'.

 

My Son and his ex-partner agreed this should go back to me as part payment. The £3k was transferred to my account after the sale completed.

 

They've now been separated 13 months and my son has continued to pay 'his' £75 Direct Debit each month.

 

During the first 4 months post-separation the ex-partner only paid her share twice (month 1 and month 4) and stated she couldn't afford to pay it back as her other commitments were to great.

 

We had dialogue via text and she stated she'd return to the £75 direct debit as soon as she was 'on her feet'.

 

I received nothing for the next 6 months despite 2 prompts via text to which she didn't reply.

 

I texted her again at the 10 month mark and she stated she would only be able to pay the £75 per month back once my son started to give her Child Maintenance as she had recently commenced a claim for this.

 

At the 11 month mark my son began to pay the child maintenance (£105 per month) so I contacted her again by text.

 

She replied that she was now unwilling to pay any of the remaining money back and that legally it was a 'gift'. 2 months down the line she has not made any further payments.

 

I can see her argument as the document states it was a 'gift'.

 

However, my argument is that if it was a gift why did she return 'her half' of the £3k profit? why has she made 2 payments of £75? and why has she sent texts stating she'll pay it once she's on her feet or when the child maintenance comes though?

 

I'm considering a small claims court application, what are my chances?

[BankFodder]

I think that we need to know more about what the document was about. Why did they sign it? And why did you not sign it?

 

I think in principle you are right that the fact that money was repaid and that they were promises to continue repayments undermines the idea of a gift.

 

I think that you have a fair chance of recovering the money in a County Court – but for instance if it turns out that the document was drafted and signed in order to avoid some tax liability, for instance, then you will definitely lose because the court will not become involved in that kind of arrangement.

 

Even if you do win, are you sure you can enforce a judgement?

[Worried1978]

I never knew of the document until well after the money had been transferred to them.

 

Wouldn't 'enforcement' be done via a DEO or similar?

 

Thanks

[BazzaS]

There is a (rebuttable!) presumption that a transfer of money father to child will be a gift.

If you had a document setting it out as a loan : this could rebut that presumption.

 

I agree with BF's concern : why was there a document setting it out as a gift if it wasn't a gift?

If you are going to make a claim on grounds that it was a loan and it is equitable for a loan to be repaid, you will need "clean hands"!

[Rexroth]

A blunt question, "Was the intention of the note stating that the money was a gift produced with the intention of deceiving the mortgage company which would be concerned if the money would have to be repaid?"