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Yes I agree that UKBA will refuse if there is no evidence of the brother being the OP's legal guardian, however if the application was refused on this ground only then it would win on appeal because of the casekkj wrote:You CANNOT show your brother as your sponsor, untill you have some proof that he is your legal guardian. Proof mean some legal/court document not just a letter from your brother.
Otherwise UKBA case worker will refused to give you visa.