However, like any presumption that is not conclusive, it is a presumption that can be contradicted, and the burden of contradicting this lies with the one who claims otherwise (ibid.).
- The relationship between the "giver" and the "receiver" must be examined at the time of the giving and not after the outbreak of the dispute between them , see Family File (Family Tel Aviv-Jaffa) 29550/04 M. v. A. 4 (Nevo 29.8.2006):
"It is not inconceivable that gifts given at a certain stage in the family's life between 'close relatives', when the relationship within the family is normal, "become" in retrospect into loans, according to the giver, after he is no longer interested in benefiting the recipient, following a family dispute that has broken out between them in the meantime.
Hence, the examination of the relationship between the giver and the receiver at the time of the giving is decisive."
- In Family Case (Family Tel Aviv-Jaffa) 15553-04-21 Father vs. Son (Nevo 24.7.2023), it was ruled that in the event of a dispute as to whether it is a gift or a loan, the burden of proof and the evidence presented in the specific case must be examined. Thus, it was held that weight should be attributed to the evidence presented to the court, and that the final conclusion will always depend on the circumstances:
"The specific weight of the evidence required in order to establish the presumption of gift between relatives varies according to the circumstances, including the nature of the family ties and the nature of the gift and its circumstances. ... It is clear that it is not possible to set strict rules and as was determined in the Goldberg case, the final conclusion is always dependent on the circumstances.
Indeed, the parent and birth of the presumption of the gift is based on life experience, and this experience shows when the presumption did not arise, including where the essence or value of the gift is inconsistent with the grant, and even between family members." See: Family Case 35951-12-14"