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Rose Summer 2018

PRE-NUP UPHELD WHEN IMPLICATIONS UNDERSTOOD

Family judges will approach pre­nuptial agreements with greater respect following a landmark Court of Appeal ruling in a 'big money' divorce case. The Court agreed with Lord Phillips' opinion in Radmacher v Granatino that failing to honour such agreements, if reasonable and freely entered into, on the basis that the Court knows best would be both 'paternalistic' and 'patronising'.

The case concerned a couple who had been married for over 20 years. Their matrimonial assets were valued at £273 million. Much of that sum was family money inherited by the husband, a Swedish national, who had increased his fortune by successfully investing in property. On the day before their wedding in Stockholm, they had signed a pre­nuptial agreement to the effect that their assets would be kept entirely separate throughout the marriage.

Following their separation, the husband had offered the wife £38 million in cash and a stake in his company. That was well in excess of her assessed needs, which came to £22 million, and was also substantially more than she would have been entitled to on a strict application of the agreement. The husband's approach was broadly accepted by a family judge, who awarded the wife a £51 million lump sum and a substantial shareholding in the company.

The wife challenged the award on the basis that the agreement should have been entirely ignored as she had not received legal advice before signing it, and that the equal sharing principle should have held sway. She sought an increase of her award to £116 million, which would still have left the husband with the lion's share – 57.5% – of the overall pot.

In dismissing her appeal, however, the Court noted that the judge had described her attempt to claim ignorance of the agreement's wording and effect as dishonourable. She had fully appreciated the implications of the agreement, which was in effect part of their marriage. She had taken an autonomous decision to enter into an agreement that was both commonplace and binding in Sweden.

A well constructed and executed pre­nuptial agreement can be a valuable and enforceable protection. Contact us for advice.

PROBATE – DON'T DELAY

The Government's announcement in the November Budget that it intends to give local authorities the power to levy a council tax premium of up to 100% on empty properties could have unwelcome consequences for executors who fail to deal with the probate and administration of an estate with reasonable speed.

The plan is aimed at discouraging 'absentee owners', of whom there are large numbers in London, from retaining their properties empty. The argument is that this has the effect of locking up housing stock and helping to maintain prices, especially for properties in the capital, at high levels.

Executors of estates faced with the need to clear and sell the property of the deceased person, which is not possible until the estate is probated, may face a hefty rates bill if the process becomes prolonged.

Our probate professionals can help you make sure that any estate of which you are executor is dealt with in an efficient and professional manner. Contact our team of specialists for assistance on info@roselegal.co.uk. or call us on 020 8974 7490.

PLACING TRUST IN A FAMILY MEMBER PROVES UNWISE

ven the most apparently trustworthy people can sometimes turn out to be anything but and that is one good reason why it is sensible to appoint a solicitor as executor of your will. In one case that proved the point, an ex­police officer took advantage of his position to steal his disabled cousin's inheritance from her father.

The cousin was vulnerable to financial exploitation and, in the belief that the officer was well placed to protect her interests, her father appointed him as his executor. Following her father's death, however, the officer took almost £130,000 from the estate and used a labyrinthine network of bank accounts to cover his tracks.

He also arranged for the bungalow inherited by his cousin, worth about £50,000, to be transferred to his son for just £1. His wrongdoing was ultimately uncovered and he was jailed for three and a half years after being convicted of conspiracy to defraud and four counts of theft. His son received a suspended sentence for conspiracy to defraud.

The facts of the case emerged as lawyers representing the Solicitor General asked the Court of Appeal to increase the officer's sentence on the basis that it was unduly lenient. The Court accepted that his punishment did not sufficiently reflect the seriousness of his crimes. However, in declining to lengthen his jail term, it noted that he was elderly and had a wife and a sick daughter to care for. He had also restored everything that he had taken from the estate.

Cases like this occur all too frequently.When appointing an attorney or executor, the best way to ensure that your assets will be protected is to enlist the services of a professional, who can exercise oversight. Contact us for help and advice on 020 8974 7490.

FAIL TO COMPLY WITH COURT ORDERS AND PRISON MAY AWAIT

When a couple divorced in early 2017, the financial agreement made included the provision that the wife should be allowed to remain in the first­ floor flat she occupied until completion of the sale of the ground­floor flat of the same property, which she and her husband owned jointly, or until 24 October 2017 at the latest. The plan was that the sale of the ground­floor flat would realise a very significant sum and this would be paid to the wife.

The wife had serious money problems, despite also having received payments totalling nearly £250,000 from her former husband. In the event, the property had not been sold by the date specified, as a result of which she did not have the expected sum of money. She refused to leave the premises so her husband went to court to force her removal.

The judge commented that 'the way the order is structured is that she took the risk of having to leave before she got access to her capital sum' and that she had 'plenty of time to sort that problem out and she must have known as the months passed approaching 24 October 2017 that the ground­floor flat was not going to sell in time for her departure… and, therefore, she would have to make some other arrangements'.

In November, the husband made an application for his wife to be committed to prison for failure to comply with a valid court order. The court ruled that unless she moved out within 28 days of the hearing, she would be sent to prison for two months. In addition, she was ordered to pay her husband's legal costs of £24,000 from her share of the proceeds of the property when sold.

Failing to comply with court orders is a risky strategy at the best of times and can lead to more than financial costs. For advice on the best way to deal with any legal issue, contact us on nner. Contact our team of specialists for assistance on info@roselegal.co.uk. or call us on 020 8974 7490 or email on info@roselegal.co.uk.


UNNECESSARY RISK-TAKING MEANS TOUR OPERATOR NOT LIABLE

With the holiday season upon us, a recent case shows that there are limits to the liability of tour operators when accidents occur, especially when they are the result of rash behaviour.

The case involved a man who fell from the balcony of his hotel in Tenerife and sustained serious injuries. When he and his family closed the sliding door, it had locked them out. In order to effect a re­entry to their room, the man decided to climb onto the adjoining balcony. However, he placed his weight on a decorative feature on the wall which, unknown to him, was made of polystyrene. It gave way and he fell 20 feet, fracturing his skull.

His claim for damages against the tour operator failed. His obvious rashness in taking the risk of climbing between balconies when there was no immediate threat to the safety of him or his family meant that he could not shift the blame onto the tour operator. The inability of a decorative feature to bear weight was understandable and the alleged defect in the self­locking mechanism that caused them to be locked out was not in point.

If you are taking a package tour and are injured or made ill as a result of something done (or not done) by the tour operator or their agent, you may have a claim for damages. However, if you contribute to your injury through your own behaviour, the compensation payable may be reduced. In cases such as this, a claim may fail altogether.

Contact us if you sustain any injury or illness which is the result of the negligence of another person or organisation.


ASPECTS OF THE PARENTAL BEREAVEMENT BILL

The Parental Bereavement (Leave and Pay) Bill began life as a Private Members' Bill in July 2017. The Bill is being supported by the Government and is now wending its way through Parliament.

The aim of the Bill is to give parents who are employed and have suffered the death of a child under 18 the right to two weeks' Bereavement Leave in order to give them time to grieve. Employees with 26 weeks' continuous service will also be entitled to Bereavement Pay.

The Government has published a consultation document seeking views on options for regulations to fulfil certain provisions contained in the Bill, specifically on:

  • the definition of 'bereaved parent';
  • how and when two weeks of Bereavement Leave and Pay can be taken; and
  • the notice and evidence required to take Bereavement Leave and Pay.

ESTABLISHED PATTERN OF GIVING NOT AN ATTEMPT TO ESCAPE COSTS

When care costs need to be met, simply giving away your money is not an avoidance strategy that normally meets with success, as the local authority is likely to contest such arrangements when calculating what it should contribute towards the costs.

In a recent case, a local council refused to meet the cost of an elderly woman's care home fees when it learned that she had given sums of money to her family while in the home. In its view, this had been a deliberate attempt to avoid paying the costs herself.

When she was admitted to the home following a stroke in 2007, she had assets of approximately £250,000. Currently, anyone with assets of over £23,500 has to pay the full cost of their care.

Seven years later, the woman's assets were depleted to the extent that her family applied for assistance from the council, which instituted a financial means assessment process to determine her eligibility for support. The council began paying for her care on a provisional basis pending the finalisation of the assessment. In the course of the assessment process, it was revealed that she had given away an average of about £1,000 per month. She claimed that this had been recommended to her by an independent financial adviser and it was something she had done for some time prior to her stroke.

The council took the view that she had intentionally deprived herself of the capital needed to pay for her care and demanded repayment of the £7,000 it had paid up to that point. It also stopped paying her care home fees.

The Local Government and Social Care Ombudsman concluded that the council had decided without good cause that the woman's gifts represented the intentional dissipation of her capital. The existence of an established pattern of giving before she went into the home was a key finding.

Taking professional advice early can represent the difference between leaving your estate to your loved ones and having it reduced by care home costs or Inheritance Tax.

We are here to provide help and advice, so please call our specialist team on nner. Contact our team of specialists for assistance on info@roselegal.co.uk. or call us on 020 8974 7490 for assistance.

AUTO-ENROLMENT – INCREASE IN MINIMUM REQUIRED CONTRIBUTION LEVELS

Under the Pensions Act 2008, every employer in the UK has a duty to enrol certain staff into a pension scheme and contribute towards it.

Employers are reminded that the minimum required contribution levels to auto­enrolment pension schemes or qualifying workplace pension schemes (based on a worker's 'qualifying earnings') increase from 6 April 2018.

From that date, the employer minimum contribution rate is 2% and the staff minimum contribution rate is 3%.

There will be a further increase from 6 April 2019, when the employer minimum contribution rate will rise to 3% and the staff minimum contribution rate will rise to 5%.

The scheme rules or agreements will need to be amended to ensure it continues to meet the qualifying criteria.

If a pension scheme does not increase its minimum contribution levels in line with the statutory requirements, it will no longer be a qualifying scheme for existing members and cannot be used for automatic enrolment.

Pension scheme trustees and providers, employers and payroll and software providers should ensure they have done all that is necessary to comply.

We can assist you in reviewing your pension scheme arrangements to ensure your statutory duties are met. Please call our specialist team on nner. Contact our team of specialists for assistance on info@roselegal.co.uk. or call us on 020 8974 7490 for advice.


NO PAY, NO PASSPORT?

In a recent consultation paper, the Department for Work and Pensions (DWP), which is the Government department that deals with child maintenance payment arrangements, outlined significant powers which, if granted, would enable it to better enforce the payment of child maintenance. Arrears of payments can cause very significant hardship to those who rely on them. The Government estimates that it would cost more than £1.5 billion to collect the outstanding arrears.

Among the powers being sought are that DWP officials would be permitted to confiscate the passports of people who fall seriously behind in the payment of child maintenance and to ban those who do so from holding a UK passport for up to two years. In addition, it would be able to deduct arrears directly from the business accounts of miscreant payers. The seizure of money from joint bank accounts has already been recommended. Changes are also proposed to the way available assets are calculated, with a view to increasing the sums that can be used for maintenance payments.

If you are facing issues over child maintenance, contact our dedicated family team for advice on nner. Contact our team of specialists for assistance on info@roselegal.co.uk. or call us on 020 8974 7490 or email: info@roselegal.co.uk

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