Norfolk Law Magazine 55 - Spring 2024

Norfolk Law

Countdown Fun and Games

Our regular dynamic duo, Mark Fitch and ‘Miss Jennings’ led the fun and games at Lawyers Do Countdown 2024, ably assisted by Dictionary Queen Shelyna Mariscal, The Mash Report’s Steve N Allen, and Julian Bradshaw of sponsors Smith & Pinching... More pics inside.

Lots to take in this time. Make sure you study the events listings carefully, we have updates on the Annual Dinner and the Charity walk around Norwich plus new events in June - a musical one too! Plus all the pics from Countdown and the new Diversity Access Scheme from the Law Society. Read on...

President’s Report

Welcome to the Spring edition of the Norfolk and Norwich Law Society magazine.

It’s been a busy start to 2024 with lots of planned changes afoot. The first and foremost is the intended change to our Constitution which I hope will take place before the end of my year as President. My main focus this year is to make the NNLS more inclusive and diverse and I am pleased to say that, with the help of committee members, we are well on the way to producing a new Constitution which will open up the NNLS to everybody who is involved in the legal profession. Keep an eye out for notices on social media for the date of an EGM so that we can get the Constitution up and running as soon as possible.

On the 9th May I was invited, with all Law Society Presidents, to attend an all day event at the Law Society which included a tour of the Royal Courts of Justice and a fireside chat with the Attorney General, Victoria Prentis facilitated by our President Nick Emmerson. It was fascinating to hear what her role involves and how she grew into it. The day continued with the Local Law Society Town hall meeting where we discussed topics such as the Law Society’s Corporate Strategy for 2025-2028 and the Bicentenary Programme, and finally a talk given by The Institute for Apprenticeships and Technical Education. It was also a great opportunity for me to meet other Law Society Presidents and gather ideas as to how we can continue to grow the Society and become bigger and better.

We had hoped to have our annual dinner at the Castle this year but unfortunately delays in the continued development taking place has meant that the Castle will not be open for such events until 2025.

Instead, we have decided to hold the annual dinner at Caister Hall which is within easy reach of Norwich. If you have been lucky enough to have been there already you will know that it is a fantastic venue. We have the marque which can fit up to 300 people which i s great as we normally have to turn some people away as the tickets sell out. We will be having the Excellence Awards as part of th e dinner. Both tickets and details of the awards will be released in the very near future so, again, please keep an eye our on social media. Lastly, but not least, we have entertainment after the dinner provided by Lee Van.

We will be walking in support of NCLS and Norfolk Citizens Advi ce this year. The event will be taking place on a date in September and is sponsored by East Anglian Chambers. The walk will start and finish outside Chambers in Cathedral Close. The walk will be slightly different this year as we are not joining forces with Access to Justice. It has been great being part of the legal walk with Ac cess to Justice in the past but, this year, we have made the brave decision to go it alone and collect for our own local charities. Please support this event and bring your colleagues, family, friends and dogs… everybody is welcome.

The Society and Committee continues to grow having close to 30 members on the committee showing both commitment and enthusiasm for the Society. With the upcoming change to the constitution, I hope to see this grow further. As always, pleas e remember we are here to help you, our members of the Society, so if you have any queries that you wish to discuss please do not hesitate to contact myself or any member of the committee.

Shelyna Mariscal President, Norfolk & Norwich Law Society 2024-25

The importance of a DNA test for Immigration applications

An investigation by the BBC in May last year1 revealed that there are UK men who are posing as fathers for migrant women and taking fees of up to £10,000 for falsely adding their names to birth certificates.

This enables the child to become a UK citizen and hence for the mother to gain residency. It appears that despite the rules banning the practice, these “fathers” are advertising on social media and are using elaborate and convincing backstories, which can only get more convoluted with use of AI. Social media posts involve both men advertising themselves as “fake fathers” and women searching for a British “citizenship daddy”.

Falsification of a birth certificate is a criminal offence2 yet the practice continues, with rare examples of prosecutions.3 As evidence of paternity, sufficient checks are required and the technology to do this, via a DNA test, is both readily available and tried and tested.4

Since the Home Office has not published data on the number of visas given to non UK parents of British children, the scale of this fraud is not publicly known. However, it is the case that if an illegal migrant female gives birth in the UK to a child who has either a) been fathered by a man with indefinite leave to remain or b) is a British citizen, then the child will be British by birth. This does the correct thing of course, it protects the child, but the consequence is that the mother can apply for a family visa and hence citizenship.

The BBC reported that this practice has been going on for many years, including communities from Bangladesh, India, Nigeria, Pakistan, Sri Lanka and Vietnam.

In these cases, where the “red flag” is raised, there is a clear requirement for a DNA paternity test. For example, a red flag would be a British child with one British parent who is named on the

birth certificate and a non-British mother who is without a visa. Unfortunately, there is no legal requirement in the UK for a DNA test when an application is made for a child’s passport or when registering the birth. There is a strong case for change.

In the cases of unmarried parents, the responsibility for registering the birth of a child lies with the mother and only the mother has parental responsibility. If both “parents” are present at the registration, then there is the situation where the fake father or the citizenship daddy will have parental responsibility for the child. Falsification aside, once the visa/citizenship process is complete, the mother may claim “genuine mistake” and via a DNA test, apply to have the fake father or citizenship daddy removed from the birth certificate. Equally, should the biological father appear, he may also apply for an amendment, but this would not give him parental responsibility unless a court order was in place or unless the mother agreed.

A DNA test for paternity either excludes a man from biological parentage with 100% certainty or determines that he is the biological father. The latter, an “inclusion” is usually given as a probability of paternity and will give a statistic in excess of 99.99%, especially if we have been able to test the mother. Of course, paternity DNA tests of this nature should be conducted by an accredited company, such as our own, which is on the Ministry of Justice list as “a body that may carry out parentage tests directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969” 5

By using such a company for these tests, you can be assured that as far as is possible, checks are carried out to establish identity and facts, plus we control the sample collection, via use of one of our registered samplers and adherence to the legal procedure for collecting samples for DNA testing.6 This is important because there is a chain of custody which allows reliance on the DNA testing data.

The BBC investigation into birth certificate manipulation has provided illumination into circumstances which are disconcerting and indeed, helps makes the case for more accredited DNA testing to be used in immigration applications.

About the author: Dr Neil Sullivan, BSc, MBA (DIC), LLM, PhD is General Manager of Complement Genomics Ltd (trading as Dadcheck®gold).

Complement Genomics Ltd (trading as Dadcheck®) is accredited by the Ministry of Justice as a body that may carry out parentage tests directed by the civil courts in England and Wales under section 20 of the Family Law Reform Act 1969.

Please see: https://dadcheckgold.com

Tel: 0191 543 6334 e-mail: sales@dadcheckgold.com

Citations

1 UK men offered £10K to pose as dads in visa scam, BBC investigation findsBBC News https://www.bbc.co.uk/news/ uk-65556437

2 Section 4 of the Perjury Act 1911

3 Mum jailed for lying about the dad of her baby on birth certificate to spite exboyfriend - Wales Online

https://www.walesonline.co.uk/news/ wales-news/mum-jailed-lying-dadbaby-16932386

4 https://www.dadcheckgold.com

5 dadcheck® is UKAS accredited testing laboratory No. 2743.

6 Blood Tests (Evidence of Paternity) Regulations 1971 (SI 1971/1861), as amended Blood Tests (Evidence of Paternity) (Amendment) Regulations 2015.

Record breaking year for charity legacy income

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Charity legacy income is estimated to have reached £4bn and bequest numbers almost 140,000 in the year 2022/23 — an annual income growth of 6.5%. This news comes at a time when a growing number of charities are increasingly reliant on gifts in Wills.

Charities must therefore be prepared to plan, invest and be creative to secure their space in this evolving sector.

CEO of Legacy Futures, Ashley Rowthorn, says:

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The growth estimate is based on this year’s Legacy Monitor from Legacy Foresight - the sector’s annual benchmarking research programme, which gathers data from over 80 charities, accounting for almost 50% of the charity legacy market.

UK legacy income, £bn

These results reflect the resilience of the legacy market, with easy and up-to-date access to the latest facts and figures from the UK legacy market now available via Legacy Future’s new Data Dashboard.

Although the upward growth trajectory looks set to continue for the long-term, Legacy Foresight also warns that current economic conditions are likely to negatively impact growth in the coming months - with falling house prices not only impacting average gift values but also affecting the time taken between notification and money being received by charities.

Despite the projected fall in house prices meaning that the medium-term forecast for legacy income is relatively subdued, beyond 2026, the forecast for the legacy market is a lot more positive, with an expected return to accelerated growth. In real terms, legacy income is predicted to reach over £6bn by 2050.

Long-term predicted growth of UK legacy income, £bn

While growth in legacy income is positive news, charities need to be aware that the market is becoming more crowded. With more charities vying to be heard in the legacy market, it is getting harder to maintain and grow share. Smaller charities with smaller budgets are finding it easier to spread their legacy programmes to potential legators as digital marketing for legacies becomes more mainstream.

“With the huge impact that external forces such as house prices and the probate backlog are having on the legacy market, it’s more important than ever and yet more challenging than ever, for charities to understand how they are faring compared to the market.

“Charities need to stay aware and informed as to what is happening to the external drivers, so they’re able to separate market trends from their own. This will enable a better understanding of their underlying performance and to set realistic budgets and strategies for the future.”

Lucinda Frostick, Director at Remember A Charity, says:

“Particularly in such tough economic times, charitable legacies have never been more valued. Fundraisers, finance teams, CEOs and trustees at any charities with established legacy fundraising programmes will no doubt be thankful that their predecessors had the foresight to invest in legacies in years gone by, helping them weather the current storm.

“We can’t control the economic environment, but what we can influence is the propensity for giving and the way in which we inspire people to leave a gift in their Will. Currently, we’re seeing appetite for legacy giving reach record levels. In challenging times, it’s all more important that we continue to collaborate within the sector and beyond, building on legacy growth to normalising charitable gifts in Wills.”

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Protecting the Interests of Vulnerable People in Court of Protection Cases

As a law firm, primarily we are here to help and so we are all genuinely approachable and aim to take the pain away from difficult situations.

Under the Mental Capacity Act 2005, The Court of Protection acts in the best interests of individuals to safeguard those with mental incapacity. This may relate to financial or welfare decisions.

The first step is to establish the degree of capacity of a vulnerable client with an assessment, ideally from a social worker. However, this can present challenges as social workers are often under resourced and may not have the bandwidth to act quickly. Sometimes the allocated social worker is unable to undertake a mental capacity assessment, as they are not in possession of the necessary accreditations. Therefore, an independent qualified person will need to be hired to undertake an assessment, which typically comes with a fee. Understandably, this can cause difficulties if P has limited funds.

The golden rule is that if there is any doubt, arrange for a mental capacity assessment (also known as a COP3).

A mental capacity assessment will enable The Court of Protection to understand the specific needs of the individual and safeguard them by awarding a Deputyship Order.

Where I have a Court of Protection case, and we have been appointed with a deputyship order in relation to P’s property and finance, the next step is to gain a full picture of the vulnerable individual’s financial position so the necessary care provision can be made. We try to achieve this without worrying them. I regularly work with clients who have complex mental health diagnoses, such as bipolar disorder, Schizophrenia and anxiety disorders and so being able to assess and administer the estate

without hassling or triggering them means we can carry out our work without having a negative impact on their wellbeing. Being able to adapt to an individual’s personal circumstances is extremely important when caring for vulnerable people.

Ordinarily, it would be necessary to write to multiple financial organisations requesting information but this is time consuming and can often be unrewarding. However, we have a close working relationship with Estatesearch who offer a wide range of services including completing a Financial Profile Search. This service is run by a dedicated team who engage with financial institutions on our behalf, they then track the responses and update us accordingly. The report streamlines the process and directs us to the appropriate institutions, so we can then obtain more detailed information and establish the full extent of the estate, which can then be used to pay for the individual’s care needs.

We are obligated to report subsequent actions to the Office of the Public Guardian. Part of this includes demonstrating how we’ve engaged the individual in decisions. I am passionate about the importance of respecting each individual’s wishes and so always aim to work with them as closely as possible as I believe this can be forgotten in incapacity cases. Often capacity fluctuates and it can be possible to engage positively with clients in conversation at different times and this should be encouraged.

Understanding different conditions to gaining trust with the client and the family is paramount. It is widely known that colours can be memory triggering for individuals living with Dementia. Therefore, whenever I visit a client I always wear a pink, fuchsia coat and sparkly shoes. Carers say even clients with little or no retention remember me with a smile and as the nice lady in the bright coat. Trying to ensure that you are maintaining consistency is important, perhaps wearing a flamboyant colour, ensuring that every time you call them it is always on a Thursday afternoon, etc. Consistency is key and creating a routine with your client can build a foundation of trust.

Applying for Court of Protection orders

can be a lengthy process. In Deputyship cases where a minimum of three related people need to respond to the court notice, one way I help speed up the process is to contact each family member and ensure they respond to the Court letter as a matter of urgency, rather than letting the statutory period lapse. This helps move ahead of other applications.

The Court of Protection have a designated team of judges and an emergency contact number for any urgent cases which require a swift turnaround, such as requiring authority to consent to urgent life sustaining operations. The Court of Protection also have an out of hours Security Office at the Royal Courts of Justice, which deal with urgent applications where P is at immediate risk, suffering serious loss or harm and require urgent medical treatment.

Working with vulnerable individuals is a calling. I have known some people who have been close to ending their own lives or were shattered from the system. My role is to bring my legal expertise to help create the best outcomes for these vulnerable individuals. It can be tough, but it is rewarding to see the tangible impact you can make in people’s lives on a daily basis. This is my main motivator and continues to inspire me every day.

Paige Gouldthorpe, Deputy Head & Court of Protection Specialist, Wills, Trusts & Probate Department and Head of Lowestoft, Fosters Solicitors

About Fosters

Formed in 1761, Fosters Solicitors is one of the oldest law firms in England. Fosters has developed a culture and values that puts clients, colleagues and partners at the centre of everything they do and this includes the team’s approach to vulnerable people in Court of Protection cases.

For further information about Fosters Solicitors please see: https://www. fosters-solicitors.co.uk/life/wills-andlife-planning/powers-of-attorney-anddeputyship/ or https://www.fosterssolicitors.co.uk/people-directory/ paige-gouldthorpe/

For further information about Estatesearch please see: www.estatesearch.co.uk

Private companies in a dispute scenario – something worth fighting over?

Even for finance professionals, assessing the value of private companies can be a minefield. Unlike publicly traded shares there is no index of market values which can be obtained and relied upon with certainty.

When the possibility of a dispute and parties acting on principle are added to the mix, it can become an explosive cocktail. This creates a quandary for legal professionals seeking to understand the value at stake.

The general rule of business valuation is for the company to be valued on a ‘willing buyer, willing seller’ assumption. This means that the valuer would look past an un-cooperative seller who states that they would not assist in the transfer of their knowledge and goodwill to the potential purchaser.

Whilst this is a helpful rule, it can also create unrealistic expectations in the minds of hard done-by minority shareholders who feel that they are sitting on a pot of gold. There can be no substitute for a formal valuation however there are a number of helpful clues for assessing whether the business in question does have underlying value to justify the time and costs of further investigation.

Company balance sheet

The balance sheet of a company shows the accounting value of all assets owned at a particular date, less the liabilities. The figure at the foot of this statement is the net asset value - technically the net asset worth of a company. In reality this is seldom the case as in many areas the market value can differ from the accounting value.

The below list could be helpful to inform an initial review of an asset base of a company.

• Property – is a property owned? This can often be the easiest win. The accounting value for property is not generally the market value and can be the carrying value from a purchase made decades ago. If any value for property or land is shown in the fixed asset note, no matter how small, it is advisable to obtain further details on the location and asset type. This information can then be used as an approximation whether there is hidden value in this area.

• Inventory – for accounting purposes, stock should be valued at the lower of its cost and the potential value on sale. Whilst there is not normally a valuation adjustment here, a wide margin between the two figures accompanied by the stock being in a state ready for resale, could give scope for negotiation. Especially if the business is being valued on a ‘fire sale’ basis.

• Investments – this asset category can cover a wide range of assets. At the most basic level this could be a parcel of listed shares or it could indicate the existence of one or more trading subsidiaries. Investments in other companies would be particularly interesting as substantial trade and assets may be hidden away from the view of this company’s balance sheet

• Overstated liabilities – these can be used to artificially decrease the overall net asset value of a company. Common examples include overly prudent reserves for items such as future dilapidations, warranty claims or restructuring. This is often a hard area to gauge from the accounts alone.

• Intellectual property – can indicate that the company has been developing an asset or product with a view to monetising this at a future date. Where this exists, a seemingly loss making company could have a value higher than expected.

• Cash – the strongest sign of a valuable company would be a sizeable cash balance indicating history of strong profits in excess of the amounts drawn out. This often occurs in owner managed businesses, as the cash is ‘money boxed’ to avoid a tax charge on extracting the funds from the company.

• Profitability – whilst not a balance sheet item, the overall profitability of a company should be treated with caution. In a sale scenario, the profit figure is ‘normalised’ to allow for potential non-market rate transactions. This could include non-business expenditure being added back to increase profits, or a decrease in profits to reflect the lack of a salary for the Director/ Shareholders.

Ensors Corporate Finance team are experienced in undertaking and assessing valuations for commercial and dispute scenarios. Please contact Simon Martin for practical advice on any valuation dilemmas.

Simon Martin

CON29DW: The Full Picture

Buying a house can be a long and confusing process for many homebuyers. It can be hard for them to understand and interpret search results, but making sure your client has the full picture of the house they are buying is so important. Geodesys aims to help demystify and speed up the process for both you and your client. The CON29DW is the only drainage and water report on the market that gives your clients all the information they need and is approved by the Law Society. It is designed to provide information on the public sewage and water networks and how they are connected to a specific address.

So, what makes the CON29DW so unique?

Reliability: You can trust that the data your client receives in a CON29DW is reliable, accurate and up to date. Geodesys gets the information in their report for customers in the Anglian Water region, straight from Anglian Water. Although alternative drainage and water reports are available, known as regulated or personal drainage and water reports, these do not use water company data and data quality may not be as good.

Efficiency: Time is everything in the conveyancing industry. Geodesys understands that the time it takes to receive property information can cause delays and may even result in a transaction falling through. That’s why over 90% of their residential reports are delivered within 3 days of ordering, with many being delivered the same day.

Expert Support: The Geodesys team of expert Customer Service Advisors are dedicated to providing support and answering any questions you, or your client, may have at every step of the way. Your confidence in property decisions is their priority.

The CON29DW also comes with robust terms and conditions to support conveyancers and their clients. The terms and conditions include £10m liability cover and a commitment that in the unlikely event something isn’t right, we take responsibility for the information provided.

Whether you are acting for a residential or commercial property there is a CON29DW to help.

CON29DW Residential*

• Answers to all 23 Law Society copyrighted questions on drainage and water.

• Includes two maps to illustrate the position of pipes.

• Includes five pages of homeowner information.

• Easy to navigate with interactive features.

CON29DW Commercial**

• Comprises of 27 standard questions aligning with the CON29DW residential report.

• Is specifically designed for those purchasing or leasing land or commercial property and covers land or buildings used or proposed to be used for commercial activities.

• Enhanced T&Cs and Indemnity.

If you’re ready for the full picture, head over to the Geodesys website*** to get in touch or call on 0800 085 8050. Their team is here to answer any questions you may have.

* https://www.geodesys.com/con29dw-residential

** https://www.geodesys.com/con29dw-commercial

***https://www.geodesys.com/contact-us

Safeguarding Estate Administration:

The 4 key areas of Family Tree Verification

In the probate genealogy industry, family tree verification ensures that inheritances and estates are rightfully distributed to the correct beneficiaries. This is a vital step for solicitors and other legal professionals dealing with the administration of a client’s estate. We will delve into the four crucial areas that emphasise the importance of family tree verification, highlighting why legal professionals should lean on the unique expertise and resources of a probate genealogy company.

Importance of a Valid Will

As we know, a Will outlines the deceased’s wishes and intentions to distribute their assets. However, it’s not uncommon for discrepancies to arise, whether due to outdated wills, wills not properly witnessed, or the absence of a will altogether. If the Will is invalid, then the rules of intestacy will apply. This is where family tree verification becomes essential.

Validating the family tree ensures that the correct beneficiaries are identified, and the assets are distributed according to the deceased’s true intentions. Without a reliable family tree, there is a risk of distributing the estate incorrectly, which can lead to legal disputes and emotional distress for all parties involved.

Relying on Family Testimonials (Don’t Do It)

Family testimonials can be a valuable source of information when piecing together a family’s history. However, they are often riddled with inaccuracies, omissions, or biased perspectives. Relying solely on family testimonials for genealogical research can lead to incomplete or incorrect family trees.

To avoid such complications, it is essential to cross-reference and validate the information obtained from family testimonials with official records and other credible sources that may only be accessible by a Probate Genealogist. At Finders International, we are experienced in using an arsenal of tools to ensure the accuracy of family trees.

Ensuring the Full Family Tree is Known (Finding Other Branches)

One common pitfall is working exclusively on the immediate family, overlooking other branches of the family tree. In probate cases, unknown distant relatives may have a legitimate claim to the estate, making it vital to explore and verify the complete family tree.

The diligent exploration of all branches of the family tree can uncover potential heirs who might otherwise go unnoticed. By expanding the search and confirming the authenticity of these extended family connections, Finders International can help ensure that rightful heirs receive their due inheritance.

Importance of Worldwide Research

In many cases, family members may be scattered across the globe and may have migrated, changed names, or settled in different countries, making it challenging to track their whereabouts.

International research is crucial to locating distant relatives and establishing their rightful claims. This often involves engaging with international records, immigration documents, and collaborating with genealogists or experts in different regions. Our dedicated International Research and Asset teams are here to assist in such matters and elevate the burden of what can be a headache area for legal professionals.

Case Study

On instruction, the solicitors were only aware of the Deceased’s child, David. However, our investigation uncovered paperwork relating to an Aviva personal pension and retirement investment account. These documents identified Ruth as the beneficiary, the Deceased’s wife, who the solicitors initially assumed was a half-sibling to the Deceased.

Further investigation led to the discovery of the marriage record between the Deceased and Ruth and a third marriage for the Deceased. Unfortunately, the Deceased’s third wife had predeceased him, and there were no surviving children from their union.

We successfully located Ruth, who now uses her mother’s maiden name. Through a representative visit, Ruth confirmed numerous details about her relationship with the Deceased, including the fact that their marriage had ended in divorce and that they had no children together.

Unaware of the Deceased’s second or third marriages, the solicitors were surprised by our findings. Our thorough research unearthed crucial information about the Deceased’s marital history and provided clarity on potential beneficiaries, ultimately aiding the solicitors in their probate proceedings. Without our involvement, the solicitors may have faced significant delays, legal complications, and potential disputes regarding the distribution of the estate.

If you need a family tree verified or would like to get in contact regarding any of our services, please contact us via email on quotes@findersinternational.co.uk or visit our website www. findersinternational.co.uk.