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In disputes the right outcome may not bring the perfect ending

Nicola Turner - November 5th 2020

A specialist in inheritance disputes, Nicola Turner looks back at a recent case and explains why the right outcome may not always have the perfect ending.

Conducting hearings can be stressful at the best of times, without the added technical difficulties remote hearings can present, but I was particularly proud of the outcome of a recent hearing, which felt like a real win, albeit somewhat of a pyric victory.

I represented a protected party (an adult with learning difficulties) and his Deputy in connection with the estate of his late father, who died without leaving a Will. My client and his brother should have inherited the estate equally. Three years after the father’s death, my client had not received any inheritance, even though the brother had obtained a Grant and sold the deceased’s property. The brother then brought proceedings alleging the father had made a death bed gift of the property to him.  If successful, this would have entitled him to keep all of the sale proceeds.

As a result of our counterclaim, we were able to secure the release of the balance of the estate for my client fairly swiftly.  The case then plodded on with the brother refusing to give disclosure of bank records to support his pleadings in which he assured the Court he had retained the sale proceeds safely in an executor’s account. After failing to comply with a request for initial disclosure, and an Order from the Court, he only provided records after an Unless Order was made (stating his claim would be struck out if he didn’t provide them).

At that point, it became apparent through analysis of the records that he had not maintained an estate account and that the proceeds had been funnelled through several different accounts and almost entirely spent. Having to act pragmatically, the claim was settled on terms that provided for payment of 2 lump sums.  After failing to pay the second instalment, the case progressed to a trial that was pointless for our client, as he would receive nothing even if successful, as the money was gone.

The hearing was of our application to strike out the brother’s claim on the basis he should not be allowed to continue as he had misled the Court with inaccurate statements in his pleadings. This might seem like common sense but in reality, this was a rare application asking the Court to exercise its ‘inherent jurisdiction’. Each element of the brother’s bad faith had to be established and clearly evidenced and he opposed everything that was said.

Thankfully, the Court agreed that he had misled the Court and our client.  In order to ‘do justice’ his claim had to be struck out, with our client retaining the right to pursue the monies in the event his brother had sufficient means in future.

Not a perfect ending, but certainly the right one in the circumstances.