Locking it away until she is 24
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ValiantSon wrote: »No they can't. There has not been an error where an individual or company mistakenly paid the money into the wrong account. The father paid the money, knowingly (as he admits in his post) into the account of his daughter. Transferring that money anywhere other than another account in the name of the daughter would be theft.
It would only be theft if in doing so the parent harboured a dishonest intention to permanently deprive the daughter of the money.0 -
bowlhead99 wrote: »I don't need to prove anything as I wasn't there and neither were you. I merely made some comments that depart from the standard advice given to people on the forum.
So, it seems OP made some sort of a mistake, which is between him and his family and not you or me.
If the dad accidentally paid his money into the wrong account due to a misunderstanding, as is my contention (in assisting the dad with a way out of his predicament), then it is in the best interests of the beneficiary of the account to just give it back and prevent further hassle. If I had money in my account that wasn't supposed to be there, I'd give it back to mitigate ongoing problems, rather than obstinately keep it. It's in my best interests in terms of hassle down the road.
Practically, they can do what they want. If they put a toy in her toybox marked "daughters toys", they can still take it out.
They have put it in the account that belongs to the daughter, due to a mistake. The mother and father didn't intend it to be given to the daughter and for it to be vested in her with absolute entitlement from a young age. At least, according to the father, who is seeking to deny access to the daughter due to what the original intention was.
Well, I'm glad that you aren't my daughter if you would seeek to spend, and deny the return of, some money provided by a relative that you know very well wasn't actually intended by anyone to be accessible by or controllable by you before you turned 24
As I said, the aunt doesn't control it.
From a practical perspective, the father making a mistake is not 'irrelevant' to what can happen in the future, given the father or wife controls the account and can rectify the said mistake
Actually I do, but that is neither here nor there.
They might not at present use it however they wish because they may not even have signatory authority over the account until they are 18. Seems quite easy to reverse the error.
If you of legally "sound mind" but not thinking clearly, put some cash in your daughter's bank account and then later realise that you didn't intend to do that until she was much older, then in order to score points for being right on the internet you might like to think that in some legal way it is gone forever and she will keep it without you having any remedy for the situation in which you find yourself. But in the real world, it isn't, especially as she doesn't even have legal capacity to control the money anyway. Just let her sue you if she has read on MSE that you've committed a heinous fraud upon her. She won't, because she would realise she is being silly.
You seem to have taken my posts from 9.24 and 9.38 and broken them up into twenty separate extracts in order to attack each one with basically the same argument. As you already provided your comments on the matter at 7pm and have not added much in the way of new reasoning since then, I don't see that twenty separate replies from you really enhances the debate, especially if you are going to say that the facts don't change no "matter how many times you say something".
I'm loath to comment as this will not be of interest to the OP of this thread here, but from those quotes it seems we are agreed that in response to a post on 18 April about whether anyone had received their LISA bonus from Skipton by then, I certainly did indeed agree to eat my proverbial hat if they had. In the end, nobody reported receiving their Skipton LISA bonus until 25 April, one full week later, so no hat-eating was required.
I realise you can't bear other people being right and you not be, as we've seen on other threads; so when I point out that I had been entirely correct on that point, it's not surprising that you tried to deflect and say that I am trying to weasel out of my position, and that I will write an inordinately long post to argue it, to make it seem like a post defending that position is wrong just because of length. Yet, I am not trying to weasel out of anything. I maintain the accurate position I held in relation to Skipton LISA bonuses, it was a correct position to take, and these two paragraphs aren't an 'inordinately' long way of telling you that.
Well, please don't feel you need to bold things for me. We're all agreed the aunt gave the money away He put it into their accounts by mistake, not realising at the time that he would frustrate his actual intention to not let them have access it until age 24. Now he has realised the mistake, perhaps he will conspire with his wife to fix the mistake, with no practical consequence because the teenage daughter isn't going to sue. Alternatively he may just educate the daughter not to drain the account before age 24.
I would not be taking the case to court. Out of court settlements are way more practical. Presuming the father has the balls to go through with it, the daughter would cave - as she holds few cards, despite being beneficiary to the account that currently holds the money.
I encouraged them to fix their earlier error. Actually the first thing I encouraged them to do - in chronological order, in my first post - was my option (1), instruct the daughter not to spend the money until age 24. If that is unlikely to work, look at other options, option (2) or beyond.
I do understand them, but thanks
This seems quite repetitious. In your 7pm post you mentioned "If the aunt had wished to set up such an arrangement she should have created a discretionary trust." Then in your 10:05 post you said "The aunt had every opportunity to set up a trust that would have allowed her to restrict access until the OP's daughter attained 24 years of age. She didn't take this action". Then, despite there being no posts from anyone else between your 10:05 post and your 10:19 posts, you are telling us again at 10:19 that the aunt had the option of creating a discretionary trust and she didn't do so. Do you just like hearing your own voice? I thought you had passed comment earlier about "it doesn't matter how many times you say it..."
For the avoidance of doubt, yes we know that the aunt didn't create a discretionary trust.
He now realises it to be a mistake as the money isn't his because it's not residing in his account but his daughter's, and the intention was for him to only let his daughter access it at 24, which is not the case, due to him giving it to her, by mistake -a lack of understanding of banking and trust law. So, you can call that what you like but some would call it "an error where an individual paid the money into the wrong account", even if there's more to it than that
Well, however he worded it, he didn't mean for it to be placed into an account that his daughter had absolute entitlement to at an age earlier than 24. We can tell that by the way he has pulled together his senses and is looking for guidance on how to make sure his daughter doesn't access it before 24. While he sees it as money which will belong to his daughters, he doesn't actually want that to happen so it was a mistake to give it to them earlier than the age at which he should have given it to them.
She must act in her daughter's best interests, and could consult with the daughter on that and explain why it was an error to put the father's money in that account when the father didn't really want her to get access until later. The daughter may quite reasonably come round to the idea that it might be in the daughter's best interests to give up beneficial ownership of the £10k (the gift made by the father in error) in order to receive £10k plus interest or investment returns later and still be in the family will, receive financial and emotional support etc between age 18-24 etc etc
Oops. The last thing I would want is an anonymous stranger on the internet being concerned for my attitude to the law.
You said it was not about morality but the law. The interpretation of law is what will be determined in a court, and may be cut n dried ; yet the court will only get a chance to do that if someone takes it to court and does not give up or settle before that point in order to keep up the family relationships and other support that goes with that.
So really it's the morality or relationship / touchy feely stuff that rules situations like this and when you have access to funds which you got for free from a trusting family member (aunt or father) that explicitly did not intend for you to get access to them until some other later point in time -wherever the cash currently happens to be sitting - you will probably freely give the money back without feeling you have been defrauded and being minded to sue.
So you agreed with my common sense option (1) in my original post but couldn't resist trying to assert the moral high ground on the other practical options. The law is the law, however history is written by the victors so if the father takes back the money (which the daughter might not even know exists anyway) to correct the error he made in the past, and then writes it into discretionary trust for her, or simply gifts it later, he will probably get away with it.
They may not take her money, and when they drive her over to see her favourite generous aunty they may not drive over 70mph on the motorway or at 31mph in a 30 zone, which is also against the law...
If they do either of those things, they will probably get away with it quite amicably.
Nothing you have said changes the fact that you are wrong. The legal position is clear cut. If I have repeated myself it is only because of your obstinacy in refusing to accept that you are wrong. Your hypocrisy in accusing me of this is breathtaking.0 -
[FONT=Verdana, sans-serif]bowlhead99 has suggested a solution to a family problem which, whilst maybe not 100% within the law, is likely to be accepted by all parties as the best way forward.
[/FONT] [FONT=Verdana, sans-serif]If the daughter did not like it she may throw a strop for a few days but then family life will go on.
[/FONT] [FONT=Verdana, sans-serif]Neither the law nor Childline will be called in and no hats will be eaten.
[/FONT] [FONT=Verdana, sans-serif]I would not tie up the money for too long as circumstances may change. For example buying a 1st property may be just the sort of situation the Aunt had in mind for the £10,000.[/FONT]
I'm glad that you are so free with the legal niceties of a bare trust. Discussing it with the daughter is fine, but it is her choice as to what happens with the money and nobody else's.
As a trustee of a bare trust, I am pretty appalled at the comments on here advocating breaking the law.0 -
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What if the aunt had expressed her wishes in writing at the time such as
Would this not clearly indicate that what the father had done was a mistake? With a mistake is there any time limit between the mistake happening and it becoming irrevocable. I make a faster payment getting the last digit of the account wrong and I can try and recover the funds the next day, if I don't realise the mistake until 2 years later have I lost the right to try and obtain redress?Dearest brother, I have transferred 10k to your account which is for your daughter when she reaches 24 years of age...I think....0 -
No, it would indicate that the father ignored the sister's wishes by putting the money in a place that the daughter could access at 180
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What if the aunt had expressed her wishes in writing at the time such as
Would this not clearly indicate that what the father had done was a mistake? With a mistake is there any time limit between the mistake happening and it becoming irrevocable. I make a faster payment getting the last digit of the account wrong and I can try and recover the funds the next day, if I don't realise the mistake until 2 years later have I lost the right to try and obtain redress?
It would still have created a bare trust and therefore the daughter would have full entitlement at 18. The aunt could have created a discretionary trust that would have granted the money at 24, but she didn't.
If you paid money accidentally into the wrong person's account and then tried to claim it back two years later then you may be unsuccessful, although the receiving party had no reasonable expectation of the money. It would not be a straightforward process. However, this analogy is flawed because this was not money mistakenly paid into the account of an unknown person by miskeying an account number. The money was paid into the account of a child, by a parent, and done so because they knew that the money was not theirs.0 -
ValiantSon wrote: »
Au contraire. If a crime, someone has to prove their guilt rather than they prove their innocence.
The sister who was the original source of the money and who is still alive to support the father's "story" gave some money to the father and they discussed that it would be given to the daughter but that the daughter should not be able to be 'touch' it until she was 24.
However, due to a misunderstanding by the father, the father paid it into an account beneficially owned by the daughter which he now understands can be accessed by her at age 18.
The father went onto the internet to post in public about the best way to deal with this error, the fact that this family money had been placed into the daughter's account early when he and his sister really intended her to have it some years later at age 24.
You say the parent would have a 'difficult time' proving that they didn't have a "dishonest intention to permanently deprive the daughter of the money". But it seems that from what the father had discussed with the sister, and what the father has posted in public in the course of his enquiries, he has no intention to permanently deprive the daughter of the money, only to save it for her benefit for a few years as any loving parent might seek to do for a minor; at least, a court may not believe that beyond reasonable doubt he did have that intention to permanently deprive her of the money. I would imagine that most people reading this thread would not think he means to permanently deprive her.
Under the Theft Act, a 'borrowing' of the money from the account to temporarily treat as his own might equate to an intention to permanently deprive - but only if, 'the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal', or where for example the father then parts with it in a way he may not be able to later return it (e.g. gambling the money or engaging in some investment that could involve loss of capital) without the permission of the owner.
But the most likely reason a court would probably not be determining this to be theft - dishonest intention to permanently deprive the person of the assets - beyond reasonable doubt - is that it probably wouldn't be going to court on charges of theft anyway. 0 -
bowlhead99 wrote: »Au contraire. If a crime, someone has to prove their guilt rather than they prove their innocence.
Yes, I am well aware of that. It doesn't, however, prevent you from having to prepare a defence if you are charged.bowlhead99 wrote: »The sister who was the original source of the money and who is still alive to support the father's "story" gave some money to the father and they discussed that it would be given to the daughter but that the daughter should not be able to be 'touch' it until she was 24.
However, due to a misunderstanding by the father, the father paid it into an account beneficially owned by the daughter which he now understands can be accessed by her at age 18.
That isn't a very strong defence, especially as it ignores the nature of a bare trust.bowlhead99 wrote: »The father went onto the internet to post in public about the best way to deal with this error, the fact that this family money had been placed into the daughter's account early when he and his sister really intended her to have it some years later at age 24.
And in that post he acknowledged that as the money wasn't his he had paid it into an account in the daughter's name. As a bare trust had been created he had no other option. (He could have skirted the issue by holding the funds in his own name, which is a very grey area, but he didn't). Discretionary trusts have to be set up carefully and would require the use of a solicitor for this purpose. Only a discretionary trust would keep the money locked away past the age of 18.bowlhead99 wrote: »You say the parent would have a 'difficult time' proving that they didn't have a "dishonest intention to permanently deprive the daughter of the money". But it seems that from what the father had discussed with the sister, and what the father has posted in public in the course of his enquiries, he has no intention to permanently deprive the daughter of the money, only to save it for her benefit for a few years as any loving parent might seek to do for a minor; at least, a court may not believe that beyond reasonable doubt he did have that intention to permanently deprive her of the money. I would imagine that most people reading this thread would not think he means to permanently deprive her.
Second guessing what a court may or may not believe is probably pointless, and it could be easily argued that the post on the internet (if it were even considered admissable) was an attempt to create a cover for the actions.
Oh, and the daughter stops being a minor at the age of 18, so you cannot argue that he is doing it in her best interest after the age of 18.bowlhead99 wrote: »Under the Theft Act, a 'borrowing' of the money from the account to temporarily treat as his own might equate to an intention to permanently deprive - but only if, 'the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal', or where for example the father then parts with it in a way he may not be able to later return it (e.g. gambling the money or engaging in some investment that could involve loss of capital) without the permission of the owner.
Yes, and locking it away for a minimum of six years could reasonably be considered such.bowlhead99 wrote: »But the most likely reason a court would probably not be determining this to be theft - dishonest intention to permanently deprive the person of the assets - beyond reasonable doubt - is that it probably wouldn't be going to court on charges of theft anyway.
Do stop quoting the Theft Act at me. I know the definition of theft.
So ultimately your argument comes down to, if you can get away with it then it is alright! Wow!0 -
Not everyone does so it was perhaps worth reminding people what you meant when you asserted that categorically it was theft:ValiantSon wrote: »
Do stop quoting the Theft Act at me. I know the definition of theft.OK, so you know what's provided for in the theft act, and that theft relates to someone having a dishonest intention to permantly deprive someone of their assets (with some relevant exceptions, which I included).ValiantSon wrote: »The daughter is the beneficial owner of the account. Doing this would be theft.ValiantSon wrote: »Transferring that money anywhere other than another account in the name of the daughter would be theft.
So you'd said it was theft and another poster reminded you what the definition of theft was. Most people on the thread probably don't believe the father has the intention to permanently deprive his daughter of £10,000.
Your counterpoint to the idea that theft had a certain meaning in relation to permanent deprivation -which would defeat your argument about theft if they did not have such dishonest intention - was that they might find it hard to prove they didn't have that dishonest intention to permanently deprive the daughter.
My observation is that it's probably only you thinking they do intend to permanently deprive, and a reasonable gathering of people here would not; ultimately if it came down to it in a court the burden of proof is not on the father (because it is very hard to prove a negative) but on a crown or private prosecution to prove it beyond reasonable doubt or on the balance of probabilities. So, the father 'having a difficult time proving their innocence' simply doesn't come up.
When you were reminded that the definition of theft - the crime you had asserted - involved a dishonest intention to permanently deprive, you did not feel able to say that you were correct to call it theft, because just like the rest of us you don't genuinely believe there is a dishonest intention to permanently deprive.So ultimately your argument comes down to, if you can get away with it then it is alright! Wow!
So instead, you tried to deflect from the challenge and make it about 'what you can prove' and that the father would find it difficult to prove their innocence.
After you made it about 'what you can prove', I pointed out that it is not on the father to prove their innocence but someone else to prove their guilt, which is unlikely to happen. But now you are complaining because you think I am suggesting it is about what you can prove and get away with. You were the one who made it about what can be proven, because you didn't like the fact that you are now uncertain about whether it is actually theft, and you don't like to back down.
You seem shocked and surprised by my attitude. If it helps, I can tell you now, if you at some point you give me your daughter's money to look after, I'll just spend it, consequences be damned.0
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