My client, now aged 91 years, had sold her unit. From the money received, she gave it to her grandson with the intention that she lives with him. The grandson did not look after her well so she decided to leave and wanted to buy her own property. She asked for half of the money back. She bought a unit from that money. As for the other half, she advises that he kept it.
When I wrote to the solicitors for the grandson, I was informed by them that it was a gift. According to my client it was not a gift.
Can I take action to recoup that money?
Thank you for the question.
The answer depends on the precise terms on which the money was given to the grandson. The precise terms will depend on the evidence, which will likely be verbal arising out of discussions between the client and grandson.
Generally, the presumption of advancement applies in such situations, which provides that a gratuitous transaction between the parties is a gift. This leaves the onerous task of proving otherwise on the client.
Depending on the facts the client may be able to prove a contractual relationship or that there was a resulting or constructive trust, which may give the client remedies.
It may also be prudent to seek instructions on elder abuse, as this may be a factor.
In the absence of evidence rebutting the presumption the client will not be able to recover the remaining funds.
Regards
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