Mrs. Joan Pentland-clark V. Patrick Collinge Gravatt Wilson And Others
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Carloway,Lady Paton |
| Neutral Citation | [2009] CSIH 48 |
| Published date | 11 June 2009 |
| Docket Number | A205/04 |
| Court | Court of Session |
| Date | 11 June 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Reed Lord Carloway | [2009] CSIH 48 Case Reference: A205/04 OPINION OF THE COURT delivered by LADY PATON in the cause MRS JOAN PENTLAND-CLARK Pursuer and Reclaimer; against PATRICK COLLINGE GRAVATT WILSON and others Defenders and Respondents: _______ |
Pursuer and reclaimer: Party
First, second and third defenders and respondents: Clark QC, Balfour & Manson
Fourth defender and respondent: Connal QC, Solicitor-Advocate, McGrigors
Fifth and sixth defenders and respondents: R. Dunlop, Brodies
11 June 2009
Introduction[1] The pursuer sues six defenders, averring maladministration of the executry estate of her late former husband James Clark to such an extent that there are currently no funds available to pay the monthly maintenance to which she is entitled following her divorce settlement in 1977. A debate on the relevancy of the pleadings took place in June 2006. By interlocutor dated 29 September 2006, the Lord Ordinary dismissed the action as irrelevant. The interlocutor per incuriam omits to mention the fifth and sixth defenders, but it is clear from the judgment that the intention was to dismiss the action so far as directed against all the defenders.
[2] The pursuer reclaimed. The fifth and sixth defenders cross-appealed in relation to the omission in the interlocutor. The reclaiming motion was heard in November 2007 by a bench chaired by Lord Macfadyen. Regrettably Lord Macfadyen's death when the case was at avizandum resulted in a re-hearing before this bench.
The defenders and respondents[3] The first and second defenders were the executors administering the estate until removed from office by the Court of Session on 27 May 1999, at which time a judicial factor was appointed. The first defender had been assumed as an executor by Deed of Assumption dated 13 December 1985, the second defender by Deed of Assumption dated 13 and 21 June 1991. The third defender is a partner of the former firm of J & G Wilson, Solicitors, Kinross, whose deceased partner John Simpson Wilson ("Jack Wilson") was an executor from 1985 until his death on 27 May 1991. The fourth defender ("Anne Clark") is the second wife and widow of the testator James Clark, and was an executor for a period following his death in 1985 until her resignation on 25 August 1986. The fifth defender was appointed as interim judicial factor to the executry estate on 27 May 1999, and confirmed as judicial factor on 8 November 2000. He remained in office until his death on 18 July 2006. His widow has been sisted in his place. The sixth defender was employed by the late judicial factor as his law agent.
[4] Thus a chronology relating to those in office as executors is as follows:
5 December 1985: James Clark died, leaving a will nominating Jack Wilson and Anne Clark as executors.
13 December 1985: the first defender was assumed as a third executor.
25 August 1986: Anne Clark resigned as executor, leaving the other two executors in office.
27 May 1991: Jack Wilson died, leaving the first defender as the sole executor.
21 June 1991: the second defender was assumed as executor.
27 May 1999: the first and second defenders were removed from office, and a judicial factor was appointed.
Background relating to the executry estate[5] The pursuer was born on 18 September 1935. She married James Clark, a farmer. They had four children. They were divorced in 1977, some five years before James Clark met and married his second wife Anne Clark. Part of the pursuer's divorce settlement comprised a Minute of Agreement dated 7 October 1977, providing inter alia:
"(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 five 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 banker's 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."
Following upon the divorce settlement, the pursuer received maintenance payments in terms of the Minute. However there were periods of non-payment, as described below. The maintenance payments adjusted to reflect the Retail Price Index currently amount to about £14,640 per annum.
[6] On 20 November 1985, James Clark executed a will in the following terms:
"I, James Clark, farmer, residing at Nether Pitlochie, Gateside, Fife, being desirous of settling the succession to my means and estate after my death hereby assign, dispone and bequeath my whole means and estate equally among my wife [Anne Clark] and my three children or such of them as shall survive me: and I appoint John Simpson Wilson [Jack Wilson] ... and my said wife to be my executors with fullest powers regarding the administration of my estate, including power to charge the usual professional remuneration: And I revoke all former testamentary writings executed by me ..."
[7] James Clark died on 5 December 1985. A few hours before his death, he signed certain documents described as an agricultural lease to, and a partnership agreement with, Anne Clark. The pursuer challenges the validity of those documents. For example, in relation to the lease, she avers that (i) by letter of undertaking dated 22 October 1954 James Clark bound himself and his heirs not to grant a lease over the farm and lands of Leckiebank without the consent in writing of his creditor the Clydesdale Bank, yet there was no such written consent; and (ii) the relevant farms had been disponed to the Clydesdale Bank in security of loans, and accordingly only the bank could grant a lease. The pursuer also challenges further transactions following upon the lease and partnership agreement: for example, a waygoing agreement in 1989 whereby Anne Clark received substantial sums of money in exchange for her undertaking to remove from Leckiebank Farm to enable it to be sold. The pursuer's position is that Anne Clark had no legitimate right to occupy the farm and was not accordingly entitled to those payments.
[8] The pursuer offers to prove that those questionable transactions were only some in a series of such transactions by which lawyers administering the executry estate, and Anne Clark, denuded the estate to such an extent that it became unable to pay the maintenance payments due to her in terms of the divorce settlement. The pursuer also offers to prove that there was in effect a scheme to withhold information from her and her children, and to carry out transactions and make payments for the benefit of Anne Clark to the prejudice of the estate, the pursuer and the children. One example of the withholding of information could be found in a memorandum of a meeting prepared by one of the first executors (Jack Wilson, now deceased) which contained the following entry:
"6. Mrs J Pentland-Clark and children: can we send lease and partnership agreement for perusal. Better to confuse them with main facts."
[9] The pursuer and her children sought legal advice on many occasions. Early in the executry, in July 1986, the children raised a petition for the removal of the executors and for the appointment of a judicial factor to the estate. In the event Anne Clark resigned as executor on 25 August 1986. The executry estate continued to be troubled by disputes and litigations over the years, as illustrated in Clark v Clark's Executors 1989 SLT 665 (where the judge described Anne Clark in her capacity as executrix as being auctor in rem suam) and Sarris v Clark 1995 SLT 44. In August 1994, the pursuer's children raised an action against the executors, which led to a mediation culminating in a Minute of Agreement dated October 1997 whereby Anne Clark and the children settled certain disputed issues. However the pursuer was not a party to the mediation. She had been concerned over the years to ensure that she received payment of the maintenance due to her in terms of the divorce Minute of Agreement. Her maintenance payments had ceased on James Clark's death, but eventually recommenced in December 1987 when the pursuer received a lump sum representing about 24 months of arrears. Payments stopped again in March 1999, at which time the pursuer petitioned the Court of Session for the appointment of the fifth defender as judicial factor ad interim to the executry estate, for sequestration of the estate, and for removal of the first and second defenders from office as executors. The pursuer was successful in her petition, all as set out in the interlocutors of Lords Maclean and Dawson dated 23 March and 27 May 1999. The judicial factor's appointment was made permanent by interlocutor of Lord Eassie dated 8 November 2000.
The first judicial factory: 1999 to 2006[10] In terms of the interlocutor dated 27 May 1999, the judicial factor was directed to:
"receive representations from [the pursuer] 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 ..."
The judicial factor duly received representations, investigated transactions, and issued a report dated 11 October 2000. The report is incorporated into the pursuer's pleadings in Article 4 of Condescendence. The report noted ...
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