Trust.
The Oxford Dictionary defines the word trust as follows-: “As a noun: A firm belief in the reliability, truth, ability, or strength of someone or something. As a verb: To have confidence in someone or to believe that someone is good, sincere, honest, and will not try to harm or trick you.”
Trust entails a belief or even faith that someone will be sincere toward you and will do you no harm. In this context it is easy to understand why parents have utmost trust in their children, why siblings have faith in their siblings and perhaps even why husbands and wives believe that the other will do them no harm.
What if I told you that you should be careful with the extent of trust you have towards your children, your siblings, your spouse, in fact, in general terms, be careful of everyone you cross paths with. I have had parents tell me under no uncertain terms that they trust their children, I have had a sister tell me that her brother would never do anything to hurt her, sadly, I have had the displeasure of being the bearer of bad news and presenting them with documents that proved that they were mistaken in their belief.
Law, it appears, has seasons. There are seasons when my office is overwhelmed with divorce matters, there are other seasons when everyone has a land issue that needs to be resolved. In the last few months, we have entered a new season. One which is starting to become a worrying trend.
As people get older, they slow down, they tend to rely on the assistance of their children, their siblings, their nieces and nephews or even strangers that show them kindness. Names are added onto bank accounts, accounts which contain life savings, or the monies meant for retirement or even the monthly pension accounts. The bank is careful with this process and ensures that medicals which reflect a proper mental capacity is presented.
But mental capacity is not the concern. The concern is adding names with the hopes that our relatives who are included will do as they are told and act as a middleman withdrawing monies when requested, purchasing medication or groceries, and, in general assisting with money matters when so instructed.
Instead, I have seen one elderly bachelor add a nephew’s name to his account to assist him with his day-to-day chores such as paying bills or purchasing food. Within a few months his life savings were withdrawn, his life savings being a significant sum, the nephew has stopped responding to his phone calls.
I have had a mother add her son’s name on her account and then have had her son withdrawn monies every week for his own expenses, who upon being chastised, advised her that the money was now equally his.
Unfortunately, there is no easy solution or easy fix in these situations. I understand that life is such that elderly persons need the support of relatives in various ways. It is difficult to advise anyone to leave their accounts in their sole names.
The law recognises a common intention between parties and the law further recognises the creation and existence of a trust. In considering the addition of names to any account it may be prudent to create a trust or record a common intention.
In most instances a name is included on an account with the belief or hope that the other party will act honourably. In the absence of specific words or discussions it is difficult to prove that included name was to safe guard funds and it can be easily interpreted that there was an intention for the included person to have personal use and access to funds.
In the instance of a common intention or trust, a person who withdraws or access money without clear instructions can be ordered by the Court to return the sums withdrawn.
A common intention is simple. It is a matter of a discussion between the parties where the account holder makes their wishes clear to the person who is to be added to the account.
The reason for the name inclusions, instructions on when money can be used and what should be done on the account holder’s death is important discussion points.
The matter should not only be discussed, but, the person whose name is to be included should understand and agree with the intent behind the inclusion of the name. Private discussions among relatives can sometimes be difficult to prove before a Court. As such, some documentation can assist further.
While an attorney-at-law can draft an agreement or trust document, not all persons may wish to proceed in this manner. A document can be drafted and signed at home. A discussion can be done in the presence of other relatives and a follow up email, message or letter sent summarising the discussion which creates some form of formality.
I know many people who believe that this formality is unnecessary, because, their children will never act in this manner. It is difficult to truly comprehend the capabilities of any one given a change of circumstances in their own life.
Be careful who you trust.
