Family Forum: Recovering a Loan

How to Recover Large Sums of Money Lent to Children

𝗤𝗨𝗘𝗦𝗧𝗜𝗢𝗡:

More than 15 years ago now, our eldest son persuaded us to sell the home we were living in, give the monies to him and his then wife (for the remodelling of another property) and move into another of his properties. This worked well until I moved overseas for work while my wife stayed behind for the first six months. She was asked to move again, to another smaller house, which she did, reluctantly. After six months I came home because my wife did not want to join me overseas. My son stopped talking to us. Over the years he has made spasmodic payments off our loan and separated from his wife. We gave him our car so he had transport to see us. Payment stopped, then started again until he lost his job over an alleged criminal offence. He has now moved interstate with a new partner. When we wrote up new wills we also wrote to our son asking for payment of some kind. His reply was harsh. The law firm said it could cost up to $50,000 to take it to court, which I don’t have. We live from one pension to the next. Please help.

𝗔𝗡𝗦𝗪𝗘𝗥:

The panel has read your your correspondence and sympathises with your very difficult situation. The type of loan you have made is known as an ‘unsecured loan’. This means that you did not take a mortgage over your son’s property to secure it in the event of default.

Clearly your son has no intention of repaying and your options are limited.

As emotionally difficult as it may be the panel recommends that you make a formal written demand for payment and then start legal proceedings to recover your money.  You should seek legal help to prepare a Summons and to file it in Court.

Given the amount involved, this will be done in the Magistrates Court. In order to defend the case your son will be required to file a statement setting out his defence to your claim. Although this may further harm your relations with him the panel feels strongly that his behaviour is a form of abuse to older people. Please visit compass.info for more information

The Court is likely to direct the parties to attend mediation during the proceedings. If you win the case you will have an enforceable order of the Court. You can then commence enforcement proceedings. These can include orders for the sale of your son’s property or enforcing his bankruptcy.

The process may be daunting but it is your only legal option given your son’s attitude to you and to repayment. The prospect of your son losing one of his properties may be what is required to achieve the outcome you require.

You may be able to obtain legal assistance from various organisations such as community legal centres or JusticeNet, which has some links to lawyers who do “pro bono” work. The Legal Services Commission is also able to provide you with advice by telephone and may grant you legal aid for a visit to a solicitor.

In the case of legal aid granted by the Legal Services Commission, you will be required to pay back legal costs in the event that you win the case and recover your money. Legal Services Commission can be contacted on 1300 366 424.

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Family Forum is a panel of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it. The panel is appointed by Relationships Australia SA.

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