Loans to children

Parents making loans to children

Sad parents – no Parent to Child Loan Agreement

Mum and dad give their daughter, Joanne $400,000 to buy a house. She then marries Ken. Ten years later Joanne and Ken divorce. The house is still worth $400k. It is the only asset of the marriage. The Family Court awards $200k to Ken. The Family Court is not interested that the money was a gift from Joanne’s mum and dad. Instead, loans to children are safer.

Smart parents – legally prepared Parent to Child Loan

Mum and dad lend $400,000 to their daughter, Joanne. Joanne signs a legally prepared Loan Agreement built on Legal Consolidated’s website. Joanne purchases a house with the money. She marries Ken. Ten years later they divorce. The house is still worth $400,000. It is the only asset. The Family Court is shown the Loan Agreement. The Family Court orders that Ken gets nothing. This is because the assets of the marriage are nil.

To protect your loan build a legally prepared Loan Agreement – on a law firm’s website. Homemade loan agreements may not work. They carry less weight with the Family Court and Bankruptcy Court. Why take the risk?

But I love my child – a Loan to my child seems harsh

There is nothing wrong with helping our children financially. It could be for their first car, grandchildren school fees, a holiday or a property. Today it is becoming more popular to help out our children with a home deposit, but simply giving away the money has real risks. It is important to protect the money in case:

1. they divorce
2. go bankrupt
3. suffer from drugs
4. suffer a mental condition
5. stop loving you – ‘King Lear’ offers his daughters his Kingdom for the return of their love, but after they promptly abandon him
6. you run out of money yourself, in your old age

Documenting loans to children

Never ‘give’ your children money. Always ‘lend’ them money ‘payable on demand’. Get it back if something goes wrong. Treat yourself like you are a bank, and your children are taking out a loan.

Creating a loan agreement not only protects your own interests but also benefits the child as you can decide in the future to forgive the loan while you are alive or in your Will.

With loans to children, never rely on a verbal agreement. Press the Build button and build a Parent lends Money to a Child Loan Deed on our website. We are Australia’s only law firm website providing legal documents online. It puts everything in writing with rules about the loan.

“Payable on Demand” seems a bit harsh for my loan to my son

Q: Under “Payment Date” I currently have your default words “Payable on demand as demanded by the Lender“. It does sound a little threatening. My situation is that I do not wish the loan to be repaid. But rather that my son’s entitlement under my Will is reduced by the debt amount when that time comes. My son is a beneficiary in my Will, alongside with our two other children – equally shared.

A: You are at war, Neville Chamberlain. Your son is only one of the enemies. The Loan Agreement is contested in the family court by your son’s first wife, second wife, current mistress and his gay partner – all at the same time. The trustee-in-bankruptcy claims the Loan Agreement is a fake. War is ugly. Toughen up to Winston Churchill level. Do not be weak.

Further, the Loan Agreement is structured to protect you and your son. Automatically, your son’s entitlement is reduced accordingly at your death because you made it ‘payable on demand’. Keep the Loan Agreement with your Will so it is not forgotten at your death.

Finally, you may want the money back if you run out of money. I am not sure if you are worth a billion dollars. But I have acted for billionaires that have run out of money. 

Tax issues when lending to children?

There are no tax issues. The interest rate for the loan is ‘as advised by the Lender’. Therefore, while the interest rate is zero you have no income tax issues. If the child separates you can increase the interest rate to draw more money out of the failed relationship. There is less money for the Family Court to give to your ex-in-law.

A loan isn’t always for property and the grandchildren’s school fees. You can also fund the children’s Superannuation fund. Speak to your Financial Planner and Accountant.

At different times, it is common to benefit one child over another with money. If you benefit one child over another then it is adjusted automatically at the time of your death. Say you lend one child $500k and the other child $300k then that is adjusted at your death. So it is all fair again.

Help son and his girlfriend buy a home – but sign the Parent Lends Money to a Child Loan Agreement

Q: The bank is lending money for my son and his girlfriend to buy a home. I am also loaning $283,000 to them.  We are going to do the same for our daughter when she gets older. How does the Loan Agreement incorporate all these expectations?

A: It doesn’t. You are not writing a Charles Dickens novel here. You are merely lending $283,000 to your son. The Loan Agreement does not record what he does with the money. He may give the money to his Church. That is his call. Start building the Loan Agreement. Consider the default answers we provide. They probably work best. 

Let us now talk about the future loan to your daughter. You may die tomorrow. In this case, the loan to the daughter never happens. That is fine. Your son still owes you (or rather, your deceased estate) the money. So you are all square between your two children. Well done.

Does the Child Loan Agreement conflict with the bank lending money?

Q; I am lending money to my daughter and her partner. A bank is also providing them with a loan. The bank is lodging a mortgage over the property (Property). The Bank will not want our parental Loan Agreement repayable “on-demand”, such that we may get paid before the Bank does.

Does the Legal Consolidated Loan Agreement permit me to amend such document, to the satisfaction of the Bank? 

A: I have no interest in what a bank wants. You are lending money to your daughter and her partner. I am not sure what that has to do with the bank. I am not sure why you are sharing private family matters with a third party. The only interest I have is you getting your money back from your daughter and her partner at some point in the future. And that is what the Loan Agreement is intended to do. Because the bank has a mortgage over the property its rights are, sadly, stronger than yours. If I could provide you with a Loan Agreement to override the bank’s interest then I would do so. Having the Loan Agreement payable “on demand” does not give you a greater right over the bank. I wish it did. But it doesn’t. However, repayable ‘on demand’ rather than specifying circumstances for repayment (e.g. house sale or divorce) keeps a wider range of circumstances open, thereby protecting the lender.

Secondly, the Loan Agreement does not state what your daughter will do with the money you are lending her under the Loan Agreement. Your daughter may give the money you lend her to a friend or buy clothes. It is her business what she does with the money. The Loan Agreement just states that you are lending her money.

Thirdly, the Loan Agreement gives you a right to lodge a caveat over any real estate your daughter owns – anywhere in Australia. This includes the Property. But if you try and lodge a second mortgage, equitable mortgage or caveat over the Property then the bank will have an issue with that.

Does the bank (with a mortgage over the home) need to know about this Loan Agreement?

Q: Our son and his wife of five years are renting a property. They are currently looking to purchase their own home.

I am loaning them $250,000 as a big deposit. Both our son and his wife are the Borrowers. So they will both owe me the money.

They will borrow a further $350,000 from a bank. The bank will put the first mortgage on the title.

Our son is a builder and like all business owners is at risk of going bankrupt. (We loved your asset protection strategies.)  Good asset protection suggests the home be put only in our son’s wife’s name only. 

1. Does any first mortgage lender need to be consulted to see if they would allow our second mortgage?
2. What happens if my son divorces and the home is solely in his wife’s name?

A: The Loan Agreement is a private family matter.

Banks do not like second mortgages. They are complex, expensive and rare. While not as safe as a mortgage, consider just lodging a caveat with the Loan Agreement attached over the property, after the settlement.

You have a fundamental misunderstanding of how divorces operate. The family court has no interest as to who owns the ‘matrimonial’ assets. The home could be in your son’s name, his wife’s name or a Family Trust. It makes no difference. The family court puts all the assets in a bucket. It stirs the pot. It then pours out the assets as the family court sees fit.

Obviously, if you have a legally prepared Loan Agreement, then the loan is paid out before any payout to the daughter. That is one of the main reasons for building the Loan Agreement.

How to lodge a caveat or mortgage using the Loan Agreement

1. Build and sign your Loan Agreement.
2. Complete and print out the Caveat or Mortgage form (free download from the titles office):
   • New South Wales: Land Registry Services
   • Victorian: Land Registry Services
   • Queensland: Department of Resources
   • Western Australia: Landgate
   • South Australia: Land Services
   • Tasmania: Land Titles Office (all States use to use this name originally. Tas is the least arrogant titles office in Australia)
   • Northern Territory: Land Titles Office
   • Australian Capital City (ACT): Land Titles Office
3. Lodge the Caveat or Mortgage with the above relevant titles office.
4. Other than South Australia, who are difficult to deal with, the relevant titles office helps you. If you are in doubt get your conveyancer, settlement agent or property lawyer to lodge the caveat or mortgage for you.

When making loans to children:

1. talk with all your children together about the loans
2. never gift children money – only loan them money (this protects both you and them)
3. don’t rely on home-made loans or IOUs – build a Loan Agreement

Child Loan Agreement on back of an envelope?

In the movies, IOUs are often handwritten on a piece of paper. Sometimes instead of a Loan Agreement, someone does a ‘minute’. Both approaches fail. In Rowntree v FCT [2018] FCA 182 shows the additional care required to document even simple related-party transactions, such as loans. In this case, the taxpayer, a practising NSW lawyer, claimed he borrowed over $4m from his group of private companies. The Court said:

‘Mr Rowntree has not deliberately chosen to ignore the law. His evidence presented to the Tribunal suggests that he genuinely believed that there were arguments to support his view that a loan was in existence.’

He failed. Only a legally prepared Loan Agreement satisfies the ATO, Bankruptcy Courts and Family Court.

Cheeky son refuses to pay Dad back

In Berghan v Berghan [2017] QCA 236 the son borrows money from his Queensland aged father. The son refuses to pay it back.

The son, in the first court case, successfully argues that the monies were given to him as a gift.  However, the Court of Appeal held that the amounts were loans.

Portrait of an ungrateful child taking

The son’s company suffers financial stress.  The son gets $98k from this Dad. The boy continues to borrow more money from dad.

Later, the son borrows his father’s credit card. The boy clocks up another $13k of debt.

First court case – child wins  – no child loan agreement

His Honour said that Dad failed to prove a legal binding agreement. There was no paperwork. There was no written loan agreement.  It was a gift.

The Judge said:

• The son promised to look after his Dad in old age. But that was just a moral obligation.
• Dad is making the payments to the son, for the benefit of the company, was simply discharging his parental obligations. This is because their daughter was an employee at the son’s company.  The money was therefore of a charitable nature. Dad was protecting the son’s company so his daughter would keep her job.
• Dad allowed his boy to use the credit card when the boy was injured and impecunious.  These circumstances are charitable.

Good sense prevails in the Appeal – child loan agreement inferred

The Court of Appeal had a better sense:

• The lengthy period it took Dad to make a demand for the money does not count against his assertion that a breach of contract existed. The Court held post-contractual conduct is not taken into account when interpreting the terms of a contract.
• The motive Dad had in transferring his son the money, be it “charitable” or otherwise, was not relevant.

The Court set aside the decision of the District Court.  The Court said that the monies were paid with an understanding that they would be repaid. This was an “inescapable conclusion”. The transactions were a contract of loan. The Court gave judgment in favour of Dad of $286k including interest.

This is another example of elder abuse. The decision shows the perils of not signing a loan agreement. Going to Court – twice in this instance – was expensive and exhausting for the aging father. 

What happens if your child has a partner and buys a home?

What if your child has a partner? The loan agreement may change depending on whose name the home is purchased under. Best that your child signs the Loan Agreement and buys the home just in their name. This binds your child alone, and the partner has no say in the matter. What if the partner objects? It is important to stay firm and explain it is ‘to protect your interests, it is nothing personal’. This protects yourself and your child, if the relationship with the partner does not end up ‘happily ever after’.

What happens if the home is purchased in both your child and their partner’s name? Then both your child and their partner sign the Loan Agreement. Our Loan Agreements allows the loan to be lodged as a caveat. Or our Loan Agreement can be registered as a second mortgage – but the bank is notified. So caveats are more common.

Additional money to help child buy first home

Often a parent wants to help a child with the deposit on their first home. The child may need more equity. In this case, build this Loan Agreement. You can lodge a caveat over the property after the bank has registered the mortgage – if you wish to. The banks do not like this. But it is your right to do so.

What if the child uses the money for another purpose? The Loan Agreement does not document what the Borrower does with the money. The Borrower is free to not continue to buy the home. The Borrower may decide to use the money to go on a holiday. The Loan Agreement has no strings attached. It has no purpose other than to lend money to a Borrower. What the Borrower does with the money is no business of the Lender.

The child loan expires – if a few dollars are not paid within 6 years

Q: I read your comments that loans expire every 6 years (e.g. the ACT) and one way to ensure that it continues is for the borrower to make a $1 payment before the end of the 6 years. As I am sure that in 6 years I will not remember this requirement, would this be easier to manage by including a yearly token payment (under “Payment Date”) of say $10?

A: That does not work. You need to diaries the payment. Before the 6 year anniversary of the loan, if nothing has been paid, then:

1. 1. the child hands you $10 with a note to say that this $10 is towards the payment of the loan; or
   2. the child transfers $10 into your bank account and then sends you an email to say that this is towards the repayment of the loan. (The email does not need to be signed.)

Print out and keep such emails and notes with the Loan Agreement. 

(Otherwise, place a $10 note, on behalf of your child, in the Loan Agreement Deed. And ‘post-date’ a note by 5 1/2 years signed by your child stating “Dear Dad, I attach $10 in part payment of my loan to you, signed your son”.)

Legal Consolidated Loan Agreements are specifically designed to allow for the above. If you do not have a Legal Consolidated Loan Agreement then speak to the lawyer who prepared the Loan Agreement as to who the Loan can be acknowledged within 6 years.

What do you get when you build the Parent to Child Loan Agreement?

Press ‘Start Building’ button above to get our:

1. Loan Agreement – ready to sign
2. Law firm’s letter of advice. Press the above “Sample” button to see a sample

Help building the Parent to Child Loan Agreement

You are building your loans to children Loan Agreement on a law firm’s website. Telephone us for legal advice. We can help you answer the questions.

Adj Professor, Dr Brett Davies,  CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers & Solicitors
National Australian law firm

Mobile:       0477 796 959
National:    1800 141 612
Email:         [email protected]