Jonathan Russel (As Executor of the Late Stuart Russell) & Irene Russell -v- Rebecca Russell (As Executrix of the Late Simon Russell) [2025] SC GLA 19
The recent Sheriff Court decision in the case of Russell & Russell -v- Russell provides a concise outline of the Scots Law position on the presumption against gift and the special presumption in favour of gift made ex pietate (that is, a gift out of natural affection, compassion or duty).
Case Facts
Stuart Russell made a payment of £70,000 (“the payment”) to his youngest son, Simon Russell, in 2009. Some years later, in his role as Attorney for his father, Stuart’s eldest son, Jonathan Russell, discovered the £70,000 payment that was made to his younger brother. Jonathan had received no comparable payment from his father.
Both Stuart and Simon are now deceased. Acting in his capacity as Executor of Stuart’s estate, Jonathan and his mother raised proceedings (“the Pursuers”) against Simon’s widow, acting in her capacity as Executrix of Simon’s estate (“the Defender”).
The Pursuers argued that the payment was a loan with monthly interest thereon and relied upon the presumption against gift. On the other hand, the Defender argued that the payment was a gift made ex pietate (that is, a gift out of natural affection, compassion, or duty).
The Sheriff drew parallels on the facts of this case with the story of the prodigal son in St. Luke’s Gospel (15:11-32).
Presumption Against Gift
The law in Scotland provides a strong presumption against gift.
The effect of this presumption is that an individual’s intention to gift must be proved with very strong and compelling evidence. It is presumed that individuals do not make payments without expecting repayment or a service in return.
The presumption against gift places the burden of proof on the recipient to prove that the payment was a gift.
Special Presumption of Gift Made Ex Pietate
This presumption relates to gifts made by a person who is under a natural obligation to support or provide for the recipient, such as a parent. In this situation, it is presumed the gift was made ex pietate.
Crucially, this natural affection, compassion or sense of duty does not end at the start of adulthood and may be life-long.
The effect is that the onus shifts to the donor to displace the rebuttable presumption that the payment was not a gift made ex pietate.
Decision
The Sheriff applied the special presumption of gift ex pietate and held the Pursuers failed to rebut the presumption that the payment was a gift made out of natural affection, compassion and duty.
In addition to the special presumption of gift ex pietate, the Sheriff placed weight on other factors when reaching his decision, including, but not limited to:
- Lack of documentary evidence, for example a written agreement, contract or letter between parties.
- Lack of any demand for repayment
- Father – Son relationship
- Jonathan’s apparent grievance against Simon
- Witness credibility and reliability
Takeaways
There is a high burden of proof to rebut either the presumption of gift or the special presumption of gift made ex pietate, with each individual case turning on its own facts and circumstances.
This case serves as a reminder that when agreeing to provide financial assistance, even to loved ones, it is crucial that you take legal advice to put in place an appropriate agreement which clearly outlines the rights and obligations of parties.
Failure to take precautions may leave you with the difficult decision of writing off what was intended to be a loan or risk damaging family relations trying to recover same.
If you have any questions about your legal rights or obligations—whether involving family, finance or anything in between—our team is here to help. Don’t hesitate to get in touch.
