Evans v Evans & anr [2020] WTLR 1231

Analysis

The claimant was married to the deceased, and was the sole beneficiary of the deceased’s estate. The claimant, who suffered from motor neurone disease and lacked capacity, was represented by her litigation friend, her daughter. The defendants were the executors of the deceased’s estate, and were the sons of the deceased and the claimant, and the brothers of the claimant’s litigation friend.

In contested probate proceedings, the claimant sought, inter alia, an order removing the defendants as executors of the deceased’s estate and the appointment of an independent administrator.

The evidence and submissions suggested that the deceased’s estate was large, valuable but complicated, comprising the proceeds of sale of the deceased’s share in a company, an interest valued at £1.4m, a loan to the estate from that company in the sum of £2m, property and land in England and Spain, and income generated by some of those properties and two caravans. Additionally, outside of the deceased’s estate, the claimant had acquired a farm via survivorship valued at £8m.

The litigation friend and the defendants had received income from different parts of the deceased’s estate and/or farm, and had occupied different parts for domestic and/or business purposes. There was a dispute between the litigation friend and the defendants as to whether income from the deceased’s estate and farm had been used for their respective benefit as opposed to the claimant’s, and allegations that the litigation friend and the defendant executors were conflicted in their respective roles.

This had led to the claimant making an application for the appointment of a receiver over the deceased’s estate and the business that the deceased formerly carried on, and over certain property that had devolved on the claimant outside of the estate, and to the defendants making an application to remove the claimant’s litigation friend.

The court was not asked to make any findings on contested matters, but was instead asked to approve an agreement whereby:

1. (1) the parties would apply to the Court of Protection for the appointment of an independent professional deputy for the claimant’s property and affairs, followed by that deputy’s substitution or the substitution of another independent party as the litigation friend;
2. (2) a professional receiver was appointed over the deceased’s estate and the farm;
3. (3) there was the delivery up of assets and documents by the parties relating to the deceased’s estate and the farm, verified by affidavit; and
4. (4) there would be a stay of proceedings for three months.

Held:

1. (1) The court was satisfied that the agreement was appropriate having had regard to what was in the claimant’s best interests in the circumstances, and being satisfied that the requirements for the grant of relief by way of an order for the appointment of a receiver under s37 of the Senior Courts Act 1981 were met. In particular, there was a need to preserve the assets of the deceased’s estate and the farm in circumstances where probate had not been granted and the estate and the farm continued to yield income.
   1. First, the appointment of a receiver would allow an independent third party to collect in, administer the assets and manage the businesses, to the claimant’s benefit.
   2. Secondly, the parties had conceded that the claimant was solely entitled to the deceased’s estate and the farm such that the previous status quo enjoyed before the deceased’s death could not continue. The appointment of an independent receiver and deputy and the formalisation of arrangements would help the litigation friend and the defendants focus on the necessary changes rather than on hostilities.
   3. Thirdly, there was nothing to preclude any of the concerns and disputes being brought back before the court.
   4. Fourthly, pending the appointment of a new litigation friend, the claimant would have the benefit of an independent deputy for her property and affairs, a benefit not contemplated by either application.
2. The arguments against approving the proposal included the costs of the receivership and the potential duplication between the solicitors administering the estate and the receiver. Although these arguments were not pressed at the hearing, the court considered these matters of its own motion and concluded, having regard to the size of the estate, the proposed costs of the receiver, and the different role of the receiver to the estate solicitors, that the benefits of the agreement outweighed the concerns (paras [13]-[19]).
3. (2) The court distinguished the position when considering the criteria to order security following the appointment of a deputy with the appointment of a receiver, but ordered security in the sum of £2.2m, being appropriate protection for the claimant should it be necessary to issue proceedings against the receiver or indemnity insurers, having regard to the value of the farm, the monies that the receiver anticipated that he would receive and the guarantee that he could obtain, and the relative illiquid nature of the estate (paras [21]-[24]).

JUDGMENT RECORDER RICHARD SMITH: Introduction [1] This judgment is concerned with two applications made in a contested probate claim issued on 28 April 2020 relating to the estate of the late Darrel Evans (‘the Estate’). Mr Evans sadly died on 12 May 2019, survived by his wife Margaret Marie Evans (‘Margaret’), the claimant in these …

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