Jonathan Russell (as executor of the late Stuart Russell) & Irene Russell against Rebecca Russell (as executrix of the late Simon Russell) (Sheriff Court Civil) [2025] SCGLA 019 (19 March 2025)

Jonathan Russell (as executor of the late Stuart Russell) & Irene Russell against Rebecca Russell (as executrix of the late Simon Russell) (Sheriff Court Civil) [2025] SCGLA 019 (19 March 2025)

The pursuers failed to rebut the special presumption in favour of donation that applies to payments from parent to child. There was no documentary or reliable oral evidence that the £70,000 payment was a loan or that interest was agreed. The absence of demand for repayment, the context of family estrangement, and the lack of detail in the pursuers' evidence all supported the inference that the payment was a gift ex pietate. Even if it were a loan, the pursuers failed to prove that Simon was financially able to repay, which was an express precondition for repayment.

Citation
[2025] SCGLA 019
Parties
Pursuer: Jonathan Russell (as executor of the late Stuart Russell); Pursuer: Irene Russell; Defender: Rebecca Russell (as executrix of the late Simon Russell)
Jurisdiction
Scotland
Judgment Date
19 March 2025
Procedural Posture
Ordinary Action (civil) / Judgment After Proof
Outcome
Defender assoilzied (absolved); decree of absolvitor granted in favour of the defender; issue of expenses reserved.
Legal Topics
Presumption of Donation, Parental Gifts, Loan Vs Gift, Onus of Proof, Natural Obligation, Repayment Conditions
Succession Law Family Law Contract Law Presumption of Donation Parental Gifts Loan Vs Gift Onus of Proof Natural Obligation +1 more

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Parties

Jonathan Russell (as executor of the late Stuart Russell)

Pursuer

Irene Russell

Pursuer

Rebecca Russell (as executrix of the late Simon Russell)

Defender

Procedural Posture

Ordinary Action (civil) / Judgment After Proof

Legal Issues

  1. 1 Whether the £70,000 payment from Stuart Russell to Simon Russell in 2009 was a loan or a gift
  2. 2 Whether monthly interest was agreed to be payable on the payment
  3. 3 Whether the presumption against donation or the special presumption in favour of donation applies in the context of parent-child payments

Ratio Decidendi

The pursuers failed to rebut the special presumption in favour of donation that applies to payments from parent to child. There was no documentary or reliable oral evidence that the £70,000 payment was a loan or that interest was agreed. The absence of demand for repayment, the context of family estrangement, and the lack of detail in the pursuers' evidence all supported the inference that the payment was a gift ex pietate. Even if it were a loan, the pursuers failed to prove that Simon was financially able to repay, which was an express precondition for repayment.

Court Disposition

Defender assoilzied (absolved); decree of absolvitor granted in favour of the defender; issue of expenses reserved.

Orders

  • Decree of absolvitor in favour of the defender
  • Assoilzies the defender from the first and second craves of the initial writ