Home Information Cases Clark v Donaldson & Ors (2003)

Skip to content. | Skip to navigation

Clark v Donaldson & Ors (2003)

Summary

An interim injunction was granted to restrain a beneficiary from dealing with those parts of his free assets derived from the deceased's estate pending the outcome of proceedings by the claimant to obtain probate in respect of a different will made by the deceased.

Facts

In an application for interim relief in proceedings to obtain probate, the claimant (C) sought to restrain the third defendant beneficiary (D) from certain conduct in relation to the deceased's estate. He also sought disclosure of documentary evidence prior to the normal time for disclosure and the costs of his applications. C lodged the instant proceedings to obtain probate in respect of the deceased's third will 18 months after probate had been granted in respect of the deceased's fourth will. Meanwhile, the executors had sold one of the estate's major assets, the former home of the deceased, and paid the net proceeds to D. D had, in turn, acquired a property with his son and daughter-in-law. All three were directors of a company that intended to use the second property to run a home for the elderly. C submitted that (1) an injunction should be granted to preserve the estate's assets and prevent their dissipation; (2) disclosure should be ordered, prior to the normal time for disclosure, of documents relating to the property acquired by D; (3) there should be an order for costs in his favour in respect of the instant applications given that they could have been avoided by D giving a proportionate and reasoned response to C's request for information.

Held

(1) The assets of the estate were to be found in the property and in the company's assets, as well as in a settlement on discretionary trusts in respect of which D was a trustee and a settlor with certain powers to prevent any form of distribution. The company, D's son and daughter-in-law were not parties to the proceedings and it would be wrong to make any order that would adversely affect their interests. Rather than freezing the entirety of D's free assets, it was right for the court to try and preserve the assets of the estate, preventing D from dealing with those parts of his free assets that had been derived from the deceased's estate. An interim injunction would be granted that restrained D from (i) creating or facilitating in the creation of any further charge in favour of the bank that was secured against the property; (ii) taking part in any disposal, by way of sale, lease or otherwise, of any interest affecting the property; (iii) raising funds in excess of £5,000 above the sum presently secured on the second property, without giving five days' notice to C; (iv) dealing with or disposing of any assets that form part of the funds subject to the settlement. (2) An order for disclosure of various documents would be made. (3) D's former solicitors had been unreasonably uncooperative in terms of disclosure. However, the way in which the case had since been conducted was a wholly responsible one and the sensible order was for C's costs in the case.

Applications granted in part.

Chancery Division
Howarth J
Judgment date
14 November 2003
References

​LTL 20/1/2004