Prodigal son case shows who bears burden of proof depends on applicable legal presumption
A recent court case which drew a biblical comparison to the parable of the prodigal son shows that who bears the burden of proof depends on the applicable legal presumption.
When a £70,000 payment made by a father to his adult son in 2009 was disputed after both had died, the father’s elder son, as executor, and his mother, claimed the money was a loan while the younger son’s widow (the defender) claimed it was a gift.
The Sheriff ruled it was a gift, drawing a biblical comparison to the parable of the prodigal son, stating that the father was free to give his money as he wished, even to a less deserving child.
The Sheriff considered two competing Scots law presumptions: general presumption against gift – usually money given is presumed to be a loan unless proven otherwise; and special presumption of gift ex pietate (out of natural affection, compassion, or duty) – in a parent-child relationship, especially where there is a natural duty of support, the presumption is that the payment is a gift.
The Sheriff held that the special presumption applied, despite the younger son being an adult, and ruled that the pursuers failed to prove the payment was a loan. As a result, their claim failed, and they will likely have to pay the defender’s legal costs.
Liam Reilly, trainee solicitor at Holmes Mackillop, said that in cases like this, who bears the burden of proof depends on the applicable legal presumption.
“As the court applied the special presumption of gift due to the father-son relationship, the onus was shifted onto the pursuers to prove the payment was a loan, which they failed to do,” he said.
“The standard of proof in civil cases is the balance of probabilities, but the amount and quality of evidence required to tip the scale is often substantial, particularly where there is no written agreement, the main parties are deceased, the claim is raised long after the payment and there is apparent emotional or personal bias.”
Reilly noted that the case demonstrates how difficult it can be to reconstruct intention years later, especially without solid contemporaneous evidence, as courts will be cautious in drawing inferences and may lean on legal presumptions when evidence is lacking or contradictory.
“We may glean a broader lesson from this case: informality in family financial dealings can lead to costly and emotionally charged legal disputes,” he said.
“While parties often avoid written agreements out of trust or a desire not to ‘offend’ loved ones, such decisions can create ambiguity that courts must resolve using legal presumptions that may not align with a party’s intentions.”
Reilly adds that in Scotland, the special presumption of gift ex pietate reflects the court’s recognition of familial duty, but it can also override evidence that might otherwise suggest a loan.
“This reinforces the importance of taking legal and financial advice at the outset, and documenting financial arrangements, even between parent and child, to prevent misunderstandings,” he said.
“Kindness or generosity doesn’t need to be undermined by formality. Clear documentation protects all parties and preserves relationships by managing expectations upfront.”
ENDS
For further information please contact Liam Reilly on tel 0141 226 4942