Sunday 24 September 2017

Man must hand back €900k he claims aunt gave him from sale of her house

Tim Healy

A MAN has lost an appeal against an order that he return around €900,000 he claimed his widowed and childless aunt gave him as a gift from the €2.8m proceeds of the sale of her Dublin home.

The man, who cannot be named, must hand over the money and assets he bought with it to a court-appointed committee set up to look after her interests after she was admitted to a nursing home with dementia in 2010.

He must also move out of another  house in his aunt's native county which she had bought with €744,000 from the proceeds of the Dublin sale.

The Supreme Court affirmed a High Court order that he had used  undue influence on his  aunt to obtain the money at a time when she was probably in the early stages of dementia.

The assets include farm machinery bought by a business the nephew worked for and in which he invested €322,000 of the money.  The machinery is to be handed over by this Friday by the nephew and two brothers who own the machinery firm, the Supreme Court said.

They also include two apartments in Poland which the nephew claimed he bought for €215,000 for a Polish woman. 

The High Court decided he had done this to ensure the money would not be available once his aunt became a ward of court  in January 2010 following legal moves on behalf of other relatives.

On behalf of a three-judge Supreme Court, Mr Justice John MacMenamin agreed with High Court judge Kevin Feeney's findings that the removal of large sums of monies from the aunt's bank account over a year-long period in 2008 and 2009 was the result of the nephew's express influence.

The High Court ruled he had sought to exercise control and dominion over his aunt to ensure she acted in accordance with his wishes and for his benefit.

It had also found the nephew's dealings with his aunt's solicitor were dishonest in his clear steps to bring about the sale of her Dublin home.

Concern about her ability to look after herself alone in her Dublin home was raised by neighbours in 2006 when she was admitted to hospital.

When she came out, she went to live in her native county in the care of the nephew who was close to her from an early age and visited her regularly in Dublin.

The High Court found however that almost immediately he put pressure on her to sell  her Dublin home including by using a forged Department of Social and Family Affairs-headed letter threatening her the State would take possession of the house and sell it.

When she bought another house in her native county using €744,000 from the Dublin sale proceeds, he attempted to have it put in their joint names, it was also found.

The High Court said there had been no credible evidence that his aunt received legal or financial advice once the €1.9m left over from the Dublin sale was lodged to her bank account, up to and after a final withdrawal of €500,000 was made from it in 2009.

The nephew had also given false testimony in relation to the Poland apartment purchases and had accepted himself that part of his evidence in relation to it was "rubbish", the High Court judge also said

Once the nephew learned there was to be an imminent examination of his aunt's mental capacity, which led to her being made a ward of court, he was involved in the cancellation of that appointment and then used his influence to withdraw almost a third of the remaining funds in her account.

Mr Justice MacMenamin said yesterday the nephew had in his appeal tried to lay emphasis on short excerpts of evidence presented to the High Court when the broader picture conveyed a different impression.

His claim that his aunt received independent advice on how the money was invested was not backed up by him despite opportunities to do so during the appeal.

The findings of the High Court judge against him were based on credible weighty testimony and the inferences drawn from it were based on clear supporting evidence, Mr Justice MacMenamin said.

The High Court was well entitled to hold he had not discharged the onus to show the gift was "the independent and well understood act of a person in a position to exercise free judgment".

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