Joan Pentland-clark As Judicial Factor On The Executry Estate Of The Late James Clark V. Mrs. Anne Meldrum Alison Macelhose (or Clark, Nee Kennedy) And Others
| Jurisdiction | Scotland |
| Judge | Morag Wise, Q.C. |
| Neutral Citation | [2009] CSOH 153 |
| Court | Court of Session |
| Published date | 19 November 2009 |
| Date | 19 November 2009 |
| Year | 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 153 | |
| OPINION OF MORAG WISE, Q.C., Sitting as a Temporary Judge in the cause MRS JOAN PENTLAND-CLARK as Judicial Factor on the executry estate of the late James Clark Pursuer; against MRS ANNE MELDRUM ALISON MACLEHOSE (OR CLARK, NEE KENNEDY) AND OTHERS Defenders: ________________ |
Pursuer: Party
First Defender: Connal, Q.C., Solicitor Advocate; McGrigors
Second, Third and Fourth Defenders: Clark, Q.C., Barne; Balfour + Manson LLP
Fifth and Sixth Defenders: R Dunlop; Brodies
19 November 2009
Introduction
[1] In this action for declarator, count reckoning and payment and reduction, the pursuer is the judicial factor on the executry estate of the late James Clark. She was appointed by interlocutor of 13 March 2007 to replace the late John Hamilton Macfie who had been appointed judicial factor ad interim on the same estate in 1999 and permanently on 8 November 2000. Mr Macfie died in 2006. Prior to her appointment as judicial factor, the pursuer, who was the first wife of the late James Clark had raised proceedings in this Court qua creditor of his estate. There was to some extent an overlap in the subject matter of those proceedings and this action which came before me for discussion on the procedure roll. However, quite apart from the important distinction that in those proceedings Mrs Pentland-Clark sued as an individual, the conclusions in that case did not include a number of the conclusions for reduction that are a feature of the Closed Record in this case. In any event, Mrs Pentland-Clark's action as a creditor was dismissed after procedure roll, a decision that she, as an individual, unsuccessfully reclaimed. (Pentland-Clark v Wilson and Others [2009] CSIH 48).
Submissions for the first defender
[2] Mr Connal, Q.C., invited me to dismiss the present action insofar as directed against the first defender, which failing to delete all irrelevant averments insofar as directed against that party. He maintained that the first defender, the second wife of the late James Clark and married to him when he died on 5 December 1985 is in a different position to the other defenders in the case and thus entitled to separate consideration. Mr Connal offered the following background to the various litigations that have arisen from the late James Clark's executry estate.
[3] When the late James Clark died in 1985 he had obligations in terms of a Minute of Agreement he had entered into with his first wife, Mrs Joan Pentland-Clark. That agreement (No. 6/19/27 of process) was dated 7 October 1977 and provided inter alia as follows:
"(Second) The husband and his executors shall pay to the wife for her maintenance until her remarriage or death but in any event, if the wife shall remain in life, for a minimum period of 5 years commencing with the date upon which decree of divorce is pronounced that sum which will, under deduction of the standard rate of tax then prevailing, produce TWO THOUSAND FOUR HUNDRED POUNDS (£2,400) STERLING net per annum. The husband will account to the Inland Revenue for the tax which falls to be deducted.....
(FOURTH) The sums payable by the husband to the wife as maintenance for herself and aliment for the said children shall be paid monthly in advance by bankers order, the first payment falling due on the date of divorce. The gross sum payable by the husband, being the sum before deduction of tax and calculated in terms of Clauses Second and Third hereof, shall be increased on each anniversary of the decree by such proportion as the retail price index shall have increased compared to the retail price index at the date of decree of divorce".
[4] It was not in dispute that the late James Clark's obligations under this agreement continued after his death. They were not obligations that the executors could seek to vary or have terminated. Payments had been made under the Minute of Agreement up until October 2005, although there were periods of non-payment, arrears having accrued during the first few years of the judicial factory. Those arrears were ultimately settled with interest by 2 March 2004 (see Pentland-Clark v Macfie & Innes A1642/03, Opinion of Lord Hardie, 21 May 2004).
[5] Mr Connal explained that since November 2005 arrears of about £67,000 have accrued to date. It was not disputed that the obligation of the estate to pay Mrs Pentland-Clark qua creditor was ongoing, albeit that the nature and extent of future payments was not known.
[6] On 20 November 1985, shortly before his death, James Clark executed a Will bequeathing his whole means and estate equally among his wife Anne Clark and his three surviving children. He appointed a Jack Wilson of Messrs J & G Wilson, Solicitors and his said wife Anne Clark to be his executors. A few hours before his death James Clark also executed certain other documents. These were - (1) a partnership agreement with Anne Clark and (2) an agricultural lease of the farmlands relative to that partnership. The lease in question had a clause confirming that Mrs Anne Clark would become the sole tenant on the death of James Clark. These documents are produced at 6/10/1, 6/10/10 and 6/10/11 of process respectively.
[7] Mr Connal explained that the first defender, Anne Clark, resigned as an executor on 25 August 1986. She has not been in a fiduciary position in the estate since then and her role has been restricted to pursuing her interests as a beneficiary. During the years that followed James Clark's death, a series of litigations ensued. Three main camps were identified - the first was the three children of James Clark's first marriage, the second comprised the executors which initially included Mrs Anne Clark, but from 25 August 1986 were Jack Wilson (until his death in May 1991), Patrick Wilson, who remained an executor until he was removed by interlocutor of this Court on 27 May 1999 and Charles William Pagan who was an executor between June 1991 and 27 May 1999 when he was also so removed. The third camp in the dispute was the first defender qua beneficiary. Two of the litigations resulted in reported decisions to which Mr Connal referred. The first, Clark v Clark's Executors 1989 SLT 665 concerned the proposed sale of Leckiebank Farm, part of the lands initially owned by the late James Clark. In essence, the then executors, including the first defender, entered into missives to sell Leckiebank Farm to third parties. Those third parties subsequently granted an assignation of their whole rights in the property to the first defender as an individual. The three children of the first marriage successfully obtained reduction of that pretended assignation on the basis that Mrs Anne Clark had been acting auctor in rem suam. Mr Connal asserted that while the first defender had been found to be auctor in rem suam in that particular context she could not be regarded as such at any time after her resignation as an executor on 25 August 1986 as the concept can only be applied to a trustee or executor.
[8] The second reported decision emanating from this troubled estate was Sarris v Clark 1995 SLT 44, a decision of the Second Division of the Inner House. In that case the three children sought to reduce an agreement whereby Mrs Anne Clark was entitled to compensation for renouncing the said agricultural lease so that the farms could be sold. The children sought declarator that Anne Clark had again been auctor in rem suam and repayment of the compensation payable to the outgoing tenant to the trust estate. At procedure roll the Lord Ordinary had allowed a proof before answer on the application of the doctrine of auctor in rem suam because the situation where the second wife was both executor and beneficiary had been created by the testator, James Clark. The children's reclaiming motion was refused, as Mrs Anne Clark's pleadings contained sufficient to leave it open to the Court after proof to hold that the doctrine of auctor in rem suam did not apply if the late James Clark had, as testator, foreseen a conflict of interest and nevertheless saw fit to appoint his wife as executor. It was also noted that restitutio in integrum was not possible in light of the sale of the farm to third parties and accordingly the remedy of reduction of the agreement in compensation was not open to the children of the deceased. Ultimately the Sarris v Clark case settled as part of a global settlement between some of the parties involved in this dispute and no proof before answer was ever held.
[9] Mr Connal took me to the report of James Macfie, the original judicial factor appointed in 1999 and 2000. That report is lodged at 6/10/14 of process. The cover of the report sets out in full the interlocutor of Lord Dawson of 27 May 1999 which sets out the scope of the judicial factor's remit. After removing Mr Pagan and Mr Patrick Wilson from office as executors the interlocutor provides as follows:
"... directs the interim judicial factor to receive representations from the petitioner and any other interested party and to investigate transactions effected in respect of the executry estate and to report on possible action to restore the estate to solvency".
[10] Mr Connal noted that Mr Macfie's report and appendices are incorporated into Mrs Pentland-Clark's pleadings. It was suggested that it would be difficult for her to argue anything contrary to the terms of that report. Mr Connal contended that as there was only one creditor left by the time of the appointment of Mr Macfie, all other beneficiaries having settled following mediation in 1997, Mrs Pentland-Clark as the current judicial factor had no locus to open up previous transactions such as the letter of waygoing (the agreement whereby Mrs Anne Clark received compensation as outgoing tenant of the farms) or the Minute of Agreement reached in 1997 after mediation. My attention was directed to paragraph 10 of Mr Macfie's report (pages 11-12 thereof) dealing with the...
To continue reading
Request your trial
-
Mrs. Joan Pentland-clark V. Patrick Collinge Gravatt Wilson And Others
...issued since the action was raised including the Opinion of Morag Wise, QC, sitting as a temporary judge, dated 19 November 2009 ([2009] CSOH 153) and the Opinion of the Court delivered by Lord Carloway dated 27 March 2012 ([2012] CSIH 29). In the judicial factor's action a proof has been a......