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Was it a loan or a gift?
2 February 2015
It happens with some regularity that people with problems receive money from a friend or family member. Sometimes, afterwards, uncertainty arises as to whether it was a gift or a loan.
The court of appeal of Arhnem-Leeuwarden recently ruled on such a case. These were two brothers-in-law. One brother-in-law had transferred € 25,000 to the other in 2005, so that the other could undergo stem cell treatment against the ALS disease in China. The treatment failed, however, and the brother-in-law passed away in 2006. About 7 years later, one brother-in-law requisitioned the money of the wife of the deceased brother-in-law. Probably the relationships were chilled and the brother-in-law could use the money suddenly.
The wife first appealed for time-barring. In the Netherlands, a claim lapses five years after the day on which the claim became due and payable. However, the court ruled that the claim was not time-barred because the brother-in-law indicated that it was an interest-free loan for an indefinite period. There was no specific time when the money had to be repaid. In that case, the limitation period only starts when the money is claimed.
However, the court ruled that the brother-in-law first had to prove that there was a loan. The wife of the deceased brother-in-law did not have to prove that there had been a donation. The brother-in-law had instituted the claim and said that it had been a loan. According to the law, the person who claims something must prove it.
If the brother-in-law is able to prove that the transfer of € 25,000 was a loan, it is not yet known because this judgment of the Court was only an interim judgment. However, the final verdict will no longer make much of the family relations.
mr. H.C. Uittenbogaart