Uncle loan to grand-nephew: effect on Will?

On Jul 31, 7:55 am, electrobi...@hotmail.com wrote:
> My Uncle recently died [after $120k payment to Grand-nephew]
*  *  *
> Where is the burden of proof in this case?

Re-thinking my first post of this morning, ISTM the party trying to get the money back from Grand-nephew would have the initial burden of proof in either case.   But sometimes there is more than one burden of proof.

If executor agrees with your Mom and tries to reclaim the money on the basis he claims it was a loan owed to the Estate, executor has the burden of proving it was a loan, and will probably have to sue Grand-nephew to get it, unless Grand-nephew gives it up voluntarily.  Of course, if Grand-nephew has already admitted that it was intended as a loan, then executor's burden of proof will be easier.  Grand-nephew can then claim, as an affirmative defense, that the loan was to be forgiven on Uncle's death.   Grand-nephew would have the burden of proving his affirmative defense.

OTOH if executor gives up on trying to collect, and your Mom wants to challenge that decision, then she would have the burden of proof, as stated in my original post.   IF indeed Grand-nephew had any reason to challenge executor's decision, he too would have the burden of proving the basis for his challenge, but the missing link there was that he doesn't in fact have to challenge anything, he can just take a defensive posture and wait for executor to sue if he wants to try to collect.

If this actually gets to a posture where your Mom's interests are at stake, you as her POA are surely going to consult a lawyer to represent her in this, aren't you?   That would be doing a good job as her POA.   Don't try this yourself.

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