Category: News Stories

Family Dispute Underlines Wisdom of Making a Professionally Drafted Will

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Family disputes frequently focus on inheritance and can inflict immense anxiety and pain on all concerned. A case concerning a young man who died tragically when he stepped in front of a train, however, showed that the best way to avoid such conflict is to make a professionally drafted will.

The deceased, who had learning disabilities and mental health issues, was aged just 35 when he died but was a wealthy man due to an inheritance from his grandfather. An inquest resulted in a verdict of accidental death. Following his death, his mother was granted letters of administration on the basis that he had died intestate – without making a valid will.

However, his uncle by marriage, with whom he had had a close relationship while he was growing up, subsequently launched a probate claim on the basis that he had in fact made two duplicate wills prior to his death. The wills, under which the uncle stood to inherit cash and property, were in identical terms and were apparently executed on the same day.

The deceased’s mother claimed that the wills were forgeries which had been created several years after his death. She pointed to the fact that they had been signed on his behalf by a man who was later convicted of an unrelated fraud and jailed. The man, who signed the wills in exercise of an enduring power of attorney granted to him by the deceased, was not a solicitor but was on occasions willing to let others think he was. He had since died.

In ruling on the matter, the High Court acknowledged that the involvement of a fraudster in the wills’ execution created a potential for forgery. However, in finding that they were genuine, the Court could detect nothing in their contents to arouse suspicion. The fraudster gained nothing from the wills and, under their terms, the deceased’s mother and brother remained his principal beneficiaries.

After hearing evidence from handwriting experts, the two witnesses to the wills and others, the Court found that they were duly executed. They had been signed in the presence of the witnesses and the deceased, at the latter’s direction. The Court was also satisfied that the deceased understood and approved their contents.

The grant of letters of administration to the deceased’s mother was revoked and the Court pronounced in favour of the duplicate wills. Given the long history of dispute between members of the family, the Court also ruled it appropriate and necessary to appoint, in the mother’s place, an independent professional as executor of the estate.

The Points-Based Visa System

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How does the UK points-based visa system work?

A new points-based immigration system came into force in the UK on 1 January 2021.

The system requires non-UK citizens to apply for and be granted an appropriate work-related visa in order to enter the UK for work purposes. (There are exceptions for Irish citizens, British National Overseas passport holders, and certain other groups.)

The role must be with an approved employer (sponsor) and must be on the eligible job list.

Visa applicants must meet specific requirements relating to the job role they are going to fulfill and each requirement will provide a number of points relating to their visa application. If the applicant gains enough points, they will be eligible for the visa (subject to other immigration checks).

Skilled worker requirements

All persons coming to the UK to work must demonstrate the following:

  • they have the required standard of spoken English
  • they have a job offer from a licensed sponsor who is registered with the Home Office
  • they are a designated ‘skilled worker’ and can fulfill the job offer requirements

These and other criteria will help the visa applicant reach the required 70 points for the new points-based system.

From 15 February 2022, new immigration rules were introduced so that care worker and home carer roles could be fulfilled by overseas workers. The Health and Care Worker visa route is a sub-category of the Skilled Worker route.

What is a ‘skilled worker’?

Being a ‘skilled worker’, in terms of immigration applications, is less about the person and more about the job they will be doing. All ‘skilled worker’ roles are defined by Home Office criteria and relate to the skill level required to fulfill the job role.

For instance, a doctor with a medical degree and postgraduate diplomas is certainly a skilled worker, but if the role he or she applies for in the UK is for something unrelated and of a lower skill level, perhaps working as an administration assistant in a bank, the role would not gain ‘skilled worker’ status and the doctor would not be eligible to apply for a ‘skilled worker visa’ in relation to this role.

What is a ‘skilled worker’ role?

All job roles in the UK have a Standard Occupational Classification (SOC) code and each code carries a skill level. The Home Office sets out what level is required for a role to be classified as ‘skilled’.

The classification of a ‘skilled worker’ role involves looking at the day-to-day activities that will be carried out by the employee and the amount they will be paid for this work. An important-sounding job title alone will not be sufficient to achieve ‘skilled worker’ status for immigration employment purposes.

The government list “Skilled Worker visa: going rates for eligible occupation codes” states the required salaries/payment rates for each role, from chief executives to shopkeepers, chemical scientists to sheet metal workers.

According to the Gov.UK website, the immigration rules will be updated to expand the number of occupations which are eligible for the ‘skilled worker’ visa entry route.

There are different salary rules for some healthcare, and teaching and education leadership roles in the UK because they are governed by national pay scales which vary by geographical location.

What has changed in respect of ‘skilled worker’ visas?

Previously, applicants with a bachelor’s degree or an NQF Level 6 qualification or above would have fulfilled the entry requirements for a Tier 2 visa.

However, the points-based system opens up the entry requirements so that a number of job roles that previously wouldn’t have been eligible now fall under the ‘skilled worker’ category.

A ‘skilled worker’ will hold minimum qualifications of either NQF Level 3 or above and A-Levels (in England and Wales), or Higher qualifications (in Scotland). This means that a more diverse set of job roles can be fulfilled by non-UK citizens who qualify as ‘skilled workers’.

The points-based visa system – how to accumulate ‘points’

The points required to be able to apply for a ‘skilled worker’ visa will comprise of a set of mandatory and tradeable points.

Mandatory points – 50 required: The applicant must have a job offer from a Home Office licensed sponsor (20 points), the job must be at an appropriate skill level (20 points), and they must have the required level of spoken English (10 points).

Tradeable points – at least 20 required: Further points are awarded in relation to the salary (minimum salary to gain points is £23,040) and must be at least 80% of the going rate for the role. Tradeable points are also awarded for those with a PhD in a subject relevant to a job (10 points) or a PHD in a STEM subject relevant to a job (20 points).

Immigration lawyers for the ‘skilled worker’ route

If you need legal advice on immigration issues and visa applications, the team of immigration professionals at Wellers Law Group are here to help. We have appointments available for confidential fixed-fee consultations in which we can answer your questions and explain the immigration processes applicable to your individual situation.

To book your appointment call Rosalind Nunoo on 020 8290 7982.

 

Pre-nups and the need for proper legal advice

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A prenuptial agreement is a means by which parties entering into a marriage can attempt to protect their individual wealth and possessions. If a divorce becomes particularly acrimonious, a pre-nup may demonstrate to a court what the original intention of the parties was for their finances before the breakdown occurred.

While no legislation has yet been passed in England and Wales to make pre-nuptials legally binding or enforceable, a court might be guided by the agreement if it has been drafted correctly, if both parties have taken independent legal advice, if the agreement does not leave one party in financial need, and the court is satisfied that both parties were fully aware of the assets at stake and the ramifications of signing the agreement.

Since Radmacher v Granatino, the landmark Supreme Court case of 2010 in which a prenuptial agreement was upheld despite the husband’s challenge, various divorce financial settlement claims have been ruled upon in light of correctly drafted pre-nups. In WW v HW [2015] EWHC 1844 the court gave considerable weight to the couple’s pre-nup even though the husband’s needs were not provided for. The husband’s exaggeration of his financial circumstances when the agreement was signed became a significant factor for the court.

The following recent judgment in the family court is another good example of the circumstances in which a prenuptial agreement will not be relied upon in court.

The case of Mrs S v Mr H

In S v H [2020] EWFC B16, the parties had both been married and divorced previously; both spouses had children from previous relationships. While abroad, and just prior to their wedding on 8 June 2010, the parties entered into a prenuptial agreement.

It was the couple’s joint intention to conduct their married life in the UK, where Mrs S ran her successful business and her children were at school. Mr H was employed on a part-time basis by the business and he also provided primary care for Mrs S’s twin daughters.

Sadly, the marriage broke down and the Wife applied for a divorce in September 2016. The couple received their Decree Absolute on 9 July 2019.

In Mrs S’s financial settlement application she sought the full range of financial relief and relied upon the prenuptial agreement which provided for a separation of property.

However, Mr H was bankrupt and he sought a sum of £739,000 in order to pay creditors and satisfy his living expenses. The sum would also have allowed him to purchase a home.

A judge’s view of the pre-nup

The pre-nup had been signed just five days before the wedding; it was prepared by a notary under the local law of the jurisdiction in which the couple was married.

His Honour Judge Booth concluded that there was “no value in the prenuptial agreement”, acknowledging that the parties’ accounts of how they entered into the agreement differed greatly. He noted that neither party had received independent legal advice from a solicitor or other qualified person and that disclosure of their respective financial positions had not occurred. It was therefore impossible for either party to have been fully aware of the potential effect of the agreement they were entering into.

Making reference to the way divorce law has developed over the last few decades, and referencing Edgar v Edgar and Radmacher v Granatino, HHJ Booth sought to clarify the court’s position on the implementation of prenuptial agreements and that if enforcement of such an agreement would leave either party in a position of need, this fact would render the court unable to act upon the terms of the agreement. However, he noted, “the other side of the coin could be that where a husband who has nothing enters into an agreement that provides him with nothing that that represents a fair outcome”.

He concluded that if the couple’s prenuptial agreement were to be upheld it would clearly put the Husband in a position of real need and the only way of alleviating this need would be to contravene the terms by taking funds from the Wife.

The outcomes

Section 25 of the Matrimonial Causes Act 1973 requires the court to consider all circumstances of each case in respect of financial need and remedy. HHJ Booth ordered a transfer of 60% of the Wife’s pension sums, plus a lump-sum payment of £270,000 to be made to the Husband so that he could pay his debts.

Mrs S was also ordered to provide a fund for the purchase of a property in which Mr H could live, subject to a trust in favour of Mrs S so she would be able to recover the capital advance at such time that Mr H no longer needed the home.

Key points

When divorcing parties rely on a prenuptial agreement in their financial settlement case, a court will seek to determine whether both parties sought independent legal advice and whether that advice was suitable. The importance of instructing a family law specialist is therefore key.

Similarly, ff the court finds that a prenuptial agreement was arranged hastily, with very little time before the marriage occurred, this may be deemed to have resulted in pressure to sign and the court is unlikely to look favourably upon the contents of the agreement.

Lastly, the above case shows us the importance of full financial disclosure. The individual documents Mr H and Mrs S relied upon during their hearing were both rudimentary and contradictory and this was one of the main reasons the court felt the pre-nup had no merit.

Wellers Law Group family law specialists

Drafting a prenuptial agreement is complex and requires knowledge of the law as it applies to family cases. Wellers’ family lawyers offer a fixed fee, no obligation one hour interview so that we may provide you with initial advice and suggest the options for your next course of action.

It Always Makes Good Sense to Appoint a Professional Executor

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Most people would consider it an honour to be chosen as executor of a friend’s or relative’s will. However, as a High Court ruling showed, the legal responsibilities that go with such a role can be extremely onerous and it usually makes better sense to appoint an experienced professional to assume the burden.

The case concerned a businessman who died in 2007, leaving an estate which was at the time valued at about £18.5 million before tax. It had since emerged, however, that it might be worth up to £118 million. By his will, he appointed his younger brother and a more distant relative by marriage as his executors.

More than a decade after probate was granted in respect of the will, his widow and three children by his first marriage, who were beneficiaries of his estate, remained dissatisfied with the executors’ performance of their duties. After they claimed to have been kept in the dark as to the extent of their inheritance, they were granted an order requiring the executors to submit on oath a full inventory of the estate and to give a true and just account of steps they had taken to administer it.

In challenging that order, one of the executors contended that the administration of the estate had been drawn out largely as a result of an extensive investigation by HM Revenue and Customs into the affairs of the deceased. Given the continuing issues surrounding the estate, including the discovery of offshore companies which had greatly increased its value, an inventory and account would be meaningless and their preparation a waste of money.

In dismissing the appeal, however, the Court noted that executors are under a cardinal duty, enshrined in Section 25 of the Administration of Estates Act 1925, to keep accounts and records relating to the administration of an estate and to stand ready with an inventory and account of their dealings when called for. The executors had had a number of years in which to resolve the practical difficulties of administering the estate and their unconscionable delay in doing so amounted to a dereliction of duty.

Although there were procedural flaws in the way in which the widow and children had launched the proceedings, they had been remedied by the Court looking at the matter afresh. As they had been without a proper understanding of their inheritance for more than 10 years, that situation could not be allowed to continue and it was high time that the executors performed their duty to illuminate them.

If you need advice on making a will or on legal issues relating to executors or their role, please do get on contact.

Immigration Update – The Shortage Occupation List

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In what may well turn out to be one of its last meaningful acts before a possible snap election, the government has announced that it has accepted the recommendations of the Migration Advisory Committee (MAC) which called for an expansion of the Shortage Occupation List (SOL). Here, Wellers’ immigration solicitors in London take a look at the recommendations and what they mean for employers in the UK.

What is the Shortage Occupation List?

The shortage occupation list is the government’s official list of occupations that cannot be sufficiently staffed by UK residents. In order to appear on the list there are three key requirements of a job:

  • there is a level of skill required for the job
  • there is a shortage of people employed at the job in the UK
  • there is sense in reducing the shortage through immigration

The Migration Advisory Committee carries out regular evidence-based reviews of the list and then makes recommendations which the government examines before deciding whether to ratify any suggestions for addition.

UK employers who wish to fill a vacancy for a position featured on the SOL with a person from outside the European Economic Area (EEA) and Switzerland must issue a Tier 2 certificate of sponsorship (CoS) and this can be done without any need to demonstrate that the Resident Labour Market Test (RLMT) has been met. In contrast, employers wishing to recruit a worker from overseas for a position which does not feature on the SOL list, must ensure that the person meets the Resident Labour Market Test.

The updated list

Prior to the latest MAC recommendations being accepted, the SOL list was most recently updated in 2013. However, in their most recent review the Migration Advisory Committee looked at potential changes to the British labour market which are likely to occur after Brexit and has, against this background, now provided an updated list of SOL occupations.

This updated list adds many roles, including those in the following sectors:

  • Medicine
  • Engineering
  • Teaching
  • Technology
  • Architecture
  • Science
  • Web design

The government has also said that it will look into another important MAC recommendation to pilot a scheme in which the SOL would be extended to meet some of the challenges faced by remote communities. Currently there is a Scotland-only SOL to accompany the UK list, and a 2018 White Paper made calls for SOLs to be drawn up for Wales and Northern Island. However, Professor Alan Manning, Chair of the committee, said that while the MAC recommends keeping the option open for additional lists, most of the shortages identified appeared to be occurring across all nations of the UK.

A parting gift

On 23 July 2019, Home Secretary, Sajid Javid told the Houses of Common in a statement, “The MAC recommended a number of changes to the main UK-wide SOL, expanding the list to cover a range of high-skilled occupations, including a number of health and social care, engineering and digital technology occupations…The Government is happy to accept all of the MAC’s recommendations on the composition of the SOL and the necessary amendments will be made in the autumn immigration rules changes.”

What this means for employers

The expanded SOL list is good news for employers as it means that they will no longer need to carry out the Resident Labour Market Test (RLMT) advertisement process for Tier 2 applications for those job roles newly listed under the SOL. Furthermore, occupations on the SOL will attract lower visa and application fees. The move should also lead to reduced sponsorship timescales.

Although the SOL changes have not yet taken effect, it is likely only a matter of time before the new home secretary makes the necessary announcement of changes to Immigration Rules in this respect.

Wellers Lawyers’ Immigration Services

Wellers Law Group can help you ensure that you are fully compliant with all the immigration rules that affect your business and your ability to employ foreign workers. Please call Rosalind Nunoo on 020 8290 7982.

We provide an immigration service UK wide and our immigration solicitors in London offer pragmatic assistance with the Points Based System (PBS), Tier 1 visas, Tier 2 visas, the Resident Labour Market Test (RLMT) and more.

For more information, contact our immigration lawyer team today.

Why Legal Advice is Essential to a BOMAD Property Transaction

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Acting as the Bank of Mum and Dad (BoMaD) in order to help a son or daughter meet the cost of buying a property or undertaking any other significant capital expense may seem like the most natural thing in the world to do. However, unless the terms, detail and conditions of the parental monetary assistance are laid out to a professional standard, any vagueness or ambiguity risks placing the parties concerned at risk of acrimony and, potentially, financial insecurity.

This is why it makes sense to take legal advice when committing to any Bank of Mum and Dad transaction. In fact, it is precisely because the assistance is so deeply personal and familial that contractual terms should be laid out as they would in any other financial agreement; the potential for traumatic financial and relationship fallout is simply too high in the event that anything goes awry.

Perhaps the biggest question facing those engaged in a BOMAD transaction is whether the sum constitutes a gift or a loan. All too often, the parties involved neglect to clarify this simply because they do not want to have to negotiate the difficult details involved.

Sadly, an act of generosity in offering financial assistance to a loved one may, at the time, be carried out amidst tears of gratitude and vague promises of “I’ll pay you back as soon as I can”, but once the house is bought and the For Sale sign comes down, the legal position of the parties may not be clear.

How NOT to do it – a case study

In 2019 the UK courts heard the case of a woman, Mrs A, who sought to reclaim money from her deceased son’s £815,000 estate, claiming that she had loaned £130,000, her life savings, to help him purchase his home.

However, the court hearing the case accepted arguments presented by the deceased man’s widow that the money was a gift rather than a loan, holding that there is a presumption that payment from parent to child constitutes a gift unless otherwise stated; in common law this is known as the Presumption of Advancement.

Mrs A, informed the court she had possessed material proof that she had been providing a loan rather than a gift but that it had “now disappeared”. Had the mother been able to present such documentation to the court it is likely that the judge would have reached a different decision in the case; however, as it was incumbent upon her to prove the monies were a loan, her case failed.

The judge stated: “This is little more than a blatant attempt by [Mrs A] to reduce the residue of [her son’s] estate, which would otherwise go to [his] widow…which is something [Mrs A] clearly finds hard to cope with.”

Conclusions

In an era when BOMAD assistance is increasingly the only way for the children of baby boomers to get a foothold on the property ladder, legal advice from an experienced solicitor should be considered the only prudent course of action when undertaking such a transaction and, if the worst comes to the worst, when a BoMaD dispute ensues.

There is no substitute for having the terms and conditions of the financial transaction laid out in writing, usually in the form of a “Deed” signed by all the parties involved, so that proof is visible at a later date. This is likely to include details of the following:

  • The amount of the gift or loan
  • How much, if any, is to be repaid
  • How and when any money due will be repaid
  • Whether any interest will apply
  • What will happen in the event of the death of the child
  • If the sum is a gift whether it might become a loan in the event certain conditions are met

However, BoMaD lenders should know that many banks and building societies require the buyer of a property to provide written proof that a mortgage deposit sum is non-refundable and unconditional, so if you wish to help your child buy a home there may be alternative structures to consider, such as becoming a guarantor or making a joint purchase, although these have risks associated with them, and the latter option mayhave Stamp Duty Land Tax, and Capital Gains Tax implications. The impact on Inheritance Tax (IHT) also has to be considered, and parents, and children, should review their Will, for instance, if the child being assisted has siblings, who may need to be treated differently.

Wellers – BOMAD solicitors

Wellers is a multi-disciplined legal firm which brings together its expertise on property law, family law and private client services such as Wills and trusts so that you can have the level of confidence and clarity you need when proceeding with a BOMAD transaction.

Whatever your BOMAD issue, contact Wellers today for help.

Alcoholism and Mental Capacity

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In order to make a valid will, you need to know your own mind – and it helps to have a solicitor on hand to advise you. That was certainly so in a case in which a businessman left the lion’s share of his £1 million fortune to a friend and colleague a few weeks before he died from alcoholism.

Against medical advice, the man had discharged himself from hospital ten days before he signed his last will. He left his shareholding in his company – by far his largest asset – to a friend who had worked with him for over 20 years. The friend was also bequeathed 75 per cent of the residue of his estate.

The man’s widow and three sons, who received 25 per cent of the residue, challenged the validity of the will on the basis that the friend had brought undue influence to bear upon him at a time when he was extremely sick and vulnerable.

The High Court acknowledged that the friend, who had made all the arrangements for execution of the will, was in a position to exert influence. In upholding the will, however, it found that he had not overstepped the mark. The man had wished the company that bore his name to carry on after his death and had viewed his friend as presenting the best prospect of achieving that objective.

The friend may have encouraged or even persuaded him to sign the will, but the Court was satisfied that he had done so of his own volition and had not been overpowered. The evidence of the solicitor who had drafted the will – who was convinced that the businessman was of sound mind, although obviously unwell – was also a crucial factor in the case.