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Private Client Titles ~ January 2023
- Bequests to Disabled Relatives – Professional Advice is Essential
- Birth Certificates Are Not Set in Stone – High Court Paternity Declaration
- High Court Comes to the Aid of Murdered Mother’s Three Children
- High Court Refuses to Authorise Collection of Gametes from Dying Student
- Landowner Target of Poison-Pen Letters Receives Substantial Damages
- ‘Mother Knows Best’ – High Court Ruling Shows That is Sadly Not Always So
- No Undue Pressure Involved in Divorce Deal Toasted with Champagne
- Pre-Nuptial Agreement Fails to Draw Venom from Super Big Money Divorce
Bequests to Disabled Relatives – Professional Advice is Essential
Leaving money to a disabled relative in your will is obviously a worthy act. As a High Court ruling showed, however, in the absence of careful drafting and professional advice, your generosity may have serious and unforeseen legal implications.
The case concerned a disabled young man who lacked capacity to make important decisions for himself. By his will, his mother’s cousin bequeathed him a six-figure sum. A difficulty arose, however, because the majority of his income was in the form of over £50,000 a year in means-tested benefits. His inheritance of such a large capital sum threatened his entitlement to those benefits.
His father launched proceedings seeking judicial permission to place his inheritance in a disabled person’s trust. That, it was hoped, would enable the retention of his full benefits entitlement. In the absence of such a trust, it was said that he would, in effect, receive no practical benefit from his inheritance.
Ruling on the matter, the Court was not persuaded that the creation of a trust would better reflect the relative’s intentions. He had been informed of the possibility of placing the money in trust prior to his death, but had not done so. He was happy that the money should be managed by the man’s parents for his benefit and there was no evidence that he was concerned with preserving benefits entitlements.
The Court did not regard a bequest which has the effect of taking a person out of dependence on means-tested benefits as a waste of time. Even if such a gift conferred no actual financial benefit on the beneficiary, it still deserved to be described as generous.
Rejecting the father’s application, the Court was not in any event satisfied that the proposed trust would have the desired effect. There was a clear risk that the relevant local authority and the Department for Work and Pensions would take the view that any such trust would be illegitimate in that its significant operative purpose would be to preserve the man’s means-tested benefits. In that event, the trust might have to be unwound, creating a risk of negative tax consequences.
The position would have been different had the relative’s will provided for the money to be placed in trust. However, the Court noted that its decision had to be based on what actually happened, rather than what might have happened. There were other disadvantages to the creation of a trust, not least that it would take the only capital available to the man outside the oversight of the Office of the Public Guardian. The Court was, overall, unpersuaded that placing the money in trust would be in the man’s best interests.
Contact us for expert advice on any matters relating to will bequests.
Partner Note
F v R [2022] EWCOP 49
Birth Certificates Are Not Set in Stone – High Court Paternity Declaration
The fathers of those who are given up for adoption as babies are often not identified on their birth certificates and that can be a painful barrier to their formation of cultural and family identities in later life. As a High Court ruling showed, however, there is a great deal that the law can do to help them.
The case concerned a woman in her 40s who was born in Portsmouth. Her mother was 18 when she gave birth to her and her father was a Royal Navy engineer who was born in Jamaica. Her father played no part in raising her and her mother was physically, emotionally and financially unable to cope alone. She was seven months old when she was given up for adoption.
She was aged 19 when her father contacted social services, asking to have contact with her. Their relationship started with exchanges of letters and photographs, but face-to-face contact led to the blossoming of a loving father-daughter bond. He fully accepted her as his child, and she was comfortably integrated into his family in Jamaica. His name, however, remained absent from her birth certificate.
Some years after his death, she sought a court order formally recognising him as her father. Her eventual aim was to have her birth certificate amended so as to officially confirm his paternity. Putting the record straight, she said, would benefit her and her two children in that it would establish their Jamaican heritage and ancestry. It would also ease her path to obtaining Jamaican citizenship.
Granting a declaration of parentage under Section 55A of the Family Law Act 1986, the Court noted that DNA testing of her father’s other biological children confirmed that they were her half-siblings to a 99.9375 per cent degree of probability. In the light of that and other evidence, the Court was satisfied to the point of being sure that she had correctly identified her father.
The Court did not itself have the power to amend her birth certificate to include her father’s name. It directed, however, that the Registrar General for Births and Deaths be informed of its decision. Given the declaration of parentage, the relevant amendment should follow without difficulty.
We can advise you on all aspects of family law. Contact <<CONTACT DETAILS>> for guidance.
Partner Note
Boudewijn v Johnson and Another [2022] EWFC 142
High Court Comes to the Aid of Murdered Mother’s Three Children
When one spouse murders another, what happens to their children? The answer, as a High Court ruling showed, is that the family justice system pulls out all the stops to ensure that they enjoy as happy and secure a future as possible.
The case concerned the two children of a murder victim, the youngest aged six, and her teenage stepchild. She was murdered by the children’s father, who is serving a sentence of life imprisonment. By the time he has any hope of release, his children will long since have grown to adulthood. Following his conviction, a local authority placed the children in foster care and launched care proceedings.
In making care orders in respect of each child, the Court agreed with the council that they should remain long term in the foster placement, which had proved a happy and stable one. Much more problematic issues arose, however, in respect of their future contact with their father.
He said that he loved and cared for his children and that he was willing to make them his first priority. All three children had expressed a wish to have face-to-face contact with him. However, the Court noted evidence that this was a reflection of their loyalty to and love for their father. It indicated their lack of awareness of the long-term implications of what he had done.
Particular difficulties arose because the father continued to protest his innocence of the murder, despite overwhelming evidence to the contrary. If he were allowed direct contact with the children, even the most sophisticated supervision was unlikely to prevent him asserting his innocence to them. Any such assertion had the potential to cause them acute psychological damage, distress and confusion.
It was not the council’s intention to sever all ties between them and their father and the Court acknowledged that a resumption of direct contact might become feasible in the future. However, it did not consider that the father could constructively engage in discussions concerning the children’s best interests when his selfish, planned and violent actions had comprehensively ridden roughshod over those interests.
The Court made an order empowering the council to refuse the father direct contact with the children. Save in the event of a life-threatening health emergency, the order also freed the council from a duty to consult the father on decisions concerning the children’s care and wellbeing. Indirect contact between them was permitted, by way of an exchange of cards or letters every six months. The council was also required to provide the father with twice-yearly written reports on the children’s progress, without disclosing the whereabouts of their foster placement or schools.
Partner Note
A Local Authority v F and Others [2022] EWFC 127
High Court Refuses to Authorise Collection of Gametes from Dying Student
Is it right for gametes – sperm or eggs – to be collected from dying people who can make no choices for themselves so that their genetic legacy can live on after they are gone? The High Court grappled with that issue in a desperately sad case.
The case concerned a university student who was being sustained on life support following a catastrophic stroke. He was unconscious and there was virtually no prospect of him surviving. The tragedy prompted his parents to make an emergency application for permission to retrieve some of his sperm so that it could be frozen and subsequently used in the conception of a child or children.
His girlfriend was said to have expressed a desire to carry his child and his parents were more than willing to raise any child born following his death. His father testified that he was very family-focused and had consistently spoken from an early age of his wish to become a father. He had kept his own toys, and even his junior golf clubs, with a view to giving them to his own children one day.
Ruling on the matter, the Court recognised the intensity of his parents’ suffering and the strength of their views that the proposed procedure would accord with his own wishes were he able to express them. The Human Fertilisation and Embryology Authority had opposed the parents’ application, but the NHS trust that bore responsibility for his care had taken a neutral stance.
Rejecting the application, the Court noted that he had made no advance decision to authorise the proposed procedure. His past expressions of desire to be a parent were not relevant to the issue before the Court in that it was one thing to have a consistent and heartfelt wish to be a living, caring father, but quite another to have one’s sperm collected and stored when unconscious and dying. There was no evidence that he would have chosen that course for himself.
Ruling that it would not be in his best interests to authorise the proposed procedure, the Court noted that it would be invasive, both in physical and privacy terms. It could not be concluded that the declarations sought by his parents would accord with his wishes, values or beliefs. The Court was informed of his death after delivering its decision and expressed its condolences to his parents.
Empathy and sensitivity are as important as legal expertise in cases such as this. Our experienced team will guide you in the most sensitive manner possible.
Partner Note
V and Another v X and Another [2022] EWCOP 48
Landowner Target of Poison-Pen Letters Receives Substantial Damages
There can be few things more wounding or worrying than to be on the receiving end of a poison-pen letter campaign. However, as a High Court ruling showed, the law provides an effective means by which victims of such behaviour can achieve both public vindication and appropriate compensation.
In the background to the case was a history of friction and grievance between a rural landowner and a couple who were his longstanding tenant farmers. He held the tenants responsible for originating and circulating some anonymous poison-pen letters which surfaced over a two-year period in the village where he lived, and which made grave and salacious allegations against him.
After he launched harassment and libel proceedings, the tenants vigorously denied that the letters originated with them. They contended that the anonymous material came to them from somewhere else and that they gave it little or no further currency. Whilst not conceding the claim, they chose not to formally acknowledge or defend it on the basis that they wished for the stressful litigation to be brought to an end.
Following a hearing, the Court found that, as no formally pleaded defence had been filed, the landowner was entitled to a default judgment on his claim. There was no basis for inferring that the defamatory allegations made against him in the letters were, or were claimed to be, true. In order to vindicate his reputation, the tenants were ordered to pay him £8,000 in libel damages and £12,000 in harassment damages.
An injunction was issued against them with a view to restraining further publication of the same or similar allegations. Their daughter, who was alleged to have been involved in the publication of one letter, was ordered to pay £2,000 in libel damages. She too denied the allegation but had not formally defended the claim.
Our expert lawyers can advise you if you think you might have an actionable harassment or libel claim. Contact <<CONTACT DETAILS>> for guidance.
Partner Note
Parsons v Garnett and Others [2022] EWHC 3017 (KB)
‘Mother Knows Best’ – High Court Ruling Shows That is Sadly Not Always So
The idea that ‘Mother knows best’ guided children’s upbringing for generations. As a High Court case concerning the relationship between a determined mother and her vulnerable adult daughter showed, however, it sadly does not always reflect reality.
The daughter, aged in her 30s, suffered from a constellation of physical and mental health disabilities, including paranoid schizophrenia. Her mother, however, had an unshakeable belief that she was being wrongly medicated and that she was being harmed and abused by a conspiracy of medical and other professionals.
Following a series of court hearings, a judge ruled that the daughter lacked capacity to make important decisions for herself. Her mother had behaved in an abusive and unpleasant manner towards care workers and her enmeshed relationship with her daughter was having a negative impact on the latter.
The local authority with responsibility for the daughter’s care was granted permission to move her to a residential placement away from the family home. Difficulties in the mother-daughter relationship persisted, however, and the council applied to the Court for restrictions to be placed on communications and contact between them.
Ruling on the application, the Court noted that the mother viewed herself as fighting alone against a great injustice being done to her daughter. No amount of reasoning or evidence could change her views. Her confrontational approach was to berate all those who disagreed with her, effectively everyone involved in her daughter’s care and the court process.
Her conduct was corrosive to the morale of those trying to care for her daughter, who found themselves on the receiving end of numerous official complaints, expressed in the strongest terms. Her communications with her daughter were contaminated by her beliefs and her battle against the medical and caring professions. Contact with her had become a negative experience for her daughter.
The Court acknowledged that the daughter enjoyed seeing her mother and wished to have contact with her. However, she lacked insight into her own condition and her mother’s negative influence. With considerable regret, the Court ordered that her mother’s contact with her should, for a period of about five months, be restricted to monitored, fortnightly telephone calls. The mother was directed not to discuss certain matters during the half-hour calls, including her daughter’s medication, placement and care.
We have experience of dealing with matters such as these. Contact our expert team for advice.
Partner Note
SCC v FP and Others [2022] EWCOP 30
No Undue Pressure Involved in Divorce Deal Toasted with Champagne
It is quite common for divorcees to claim that they have been placed under undue pressure to strike an unfavourable financial deal. In a big money case, however, a judge ruled that a wife was no lamb to the slaughter but voluntarily signed up to a compromise with her ex-husband which was toasted with champagne.
The German couple, aged in their 70s, enjoyed an immensely high standard of living during their marriage of over 30 years. Following their divorce in Germany, there was a meeting at a hotel during which both signed a settlement agreement by which the husband was to make substantial financial and other provision for the wife.
She, however, went on to swiftly repudiate the agreement and launched proceedings in England – where she resided – seeking financial relief against the husband under the Matrimonial and Family Proceedings Act 1984. She asserted that he and the couple’s son had placed her under massive pressure to enter into the agreement, which she had not signed of her own free will.
Rejecting those allegations, however, the judge found that she was the driving force behind the meeting taking place and that she could not be viewed as a supplicant cowed into submission by a bullying ex-husband and son. Far from being upset, disappointed or distressed at the meeting, her mood was one of relief. She willingly engaged in the champagne toast and considered at the time that she had achieved a good result. She signed the agreement voluntarily, with her eyes open.
Her subsequent repudiation of the deal was an act of foolishness that only served to weaken her position. The terms of the agreement were, in any event, not unfair and the provision it made for her future fell very much within the bracket of awards that she might have obtained from an English court.
Despite her repudiation of the agreement, the judge was confident that the husband – who had professed his wish to do the right thing by her – would comply with its terms. In order to secure her position, however, the provisions of the agreement were encapsulated in an order of the court. The judge hoped that his ruling would mark an end to the years of strife that had riven the family.
If you are dealing with divorce proceedings, we can ensure you are expertly advised and represented.
Partner Note
Pierburg v Pierburg [2022] EWHC 2701 (Fam)
Pre-Nuptial Agreement Fails to Draw Venom from Super Big Money Divorce
One laudable aim of most pre-nuptial agreements is to simplify the division of assets should a marriage end in divorce. As a High Court ruling in an extraordinarily high-value case showed, however, that objective is not always achieved.
The case concerned the nearly nine-year marriage of a property entrepreneur whose fortune, once in excess of $1.7 billion, was said to have plummeted to between $600 million and $800 million due to an economic downturn. He and his wife enjoyed a billionaire lifestyle, complete with five fully staffed luxury homes in fashionable places around the world. Money was, in short, never a concern for them.
Prior to their marriage, the couple signed a pre-nuptial agreement, the detailed provisions of which sought to protect the husband’s pre-marital wealth and to itemise the wife’s entitlements were their marriage to end in divorce – which it did. The pre-nuptial agreement, which was subsequently modified so as to increase the wife’s provision, was properly executed and she did not dispute that it was valid and binding.
The intended objective of the pre-nuptial agreement was to spell out the financial consequences of a divorce with clarity so as to prevent, or at least seriously circumscribe, the scope for future litigation. However, the scale and ferocity of the financial disputes between them arising from the divorce demonstrated the enduring vigour of the law of unintended consequences.
The interpretation of the pre-nuptial agreement was hotly disputed and they had, to date, incurred legal costs of close to £5 million in financial relief proceedings. The Court observed that the litigation had probably been more intense and extensive than would have occurred in a routine financial remedy case in which a pre-nuptial agreement did not feature.
Ruling on the matter, the Court found that, on a correct reading of the pre-nuptial agreement, the wife was entitled to exit the marriage with £37,489,392, net of tax. She would receive about £28 million in cash, with the balance being made up by property transfers. She was also entitled to live in the former matrimonial home, worth about £35 million, until the younger of their two children reached the age of 21.
The husband was further required to pay the mortgage on the family home, cover the children’s school fees and pay a maximum of £100,000 a year towards the cost of employing nannies for them. His child maintenance liabilities were fixed at £23,100 per child per month until they reached the age of 18 or completed full-time tertiary education.
If you are divorcing, a number of issues may arise on which sound legal advice is essential. We can talk you through alternative dispute resolution options, to help mitigate the need for expensive and drawn-out court proceedings.
Partner Note
Collardeau-Fuchs v Fuchs [2022] EWFC 135
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