CONTENTIOUS PROBATE CLAIMS : EXPENSES : PROBATE : PROPERTY FREEZING ORDERS : INTEREST OF JUSTICE : COMPLEXITY OF SUBSTANTIVE TRIAL

In the interests of justice and in light of the considerable complexity of a trial of the substantive case, the sole beneficiary of a disputed will against whom a freezing order had been obtained in respect of a deceased's estate was entitled to use sums from the estate, as were reasonable and agreed, to fund his reasonable legal expenses in the future.

The applicant (X) applied to vary the terms of a worldwide freezing order to allow him to continue defending legal proceedings against him and to draw living expenses from the estate of the deceased. X, the deceased's civil partner, had been granted probate of the deceased's estate on the basis of a copy of a will purportedly executed by the deceased shortly before his death. The deceased's estate was considerable and, under the terms of the will as executed, X was the sole beneficiary. Soon after the grant of probate, X bought a number of expensive cars with money from the estate. Thereafter, the trustees and beneficiary of an earlier will (C) sought to revoke the grant of the will naming X as sole beneficiary and sought probate in respect of an earlier will on the basis of an allegation that the later will was a forgery. C successfully applied for a worldwide freezing order in respect of the deceased's estate as against X and he was also ordered to account for money stored in the deceased's property and to offer an explanation for money that had been spent. Although, X accounted for the money left in the property, there was a considerable amount of money not accounted for. X did not explain where that money had gone. Under the terms of the freezing order, X was allowed a specified sum for living expenses and a reasonable amount for legal expenses. X submitted that (1) he would be unable to continue defending the claim against him unless he was allowed access to funds from the estate in order to maintain his defence; (2) that he should be allowed to draw living expenses from the estate of the deceased.

HELD: (1) There were considerable and complex issues to be tried in the case; it was unrealistic to expect X to defend himself. Accordingly, in the interests of justice, X should not be debarred from defending the action against him, Motorola Credit Corp v Uzan (No6) (2003) EWCA Civ 752, (2004) 1 WLR 113 applied. There were, however, inherent difficulties in varying proprietary freezing orders in favour of a defendant who had no other assets than those as were vested in the subject property. Fortunately, the parties had agreed to loan X a quantity of money that would cover his immediate legal expenses and X had agreed to sell the cars he had bought. Accordingly, X could use the proceeds of the sale of those vehicles to discharge his outstanding legal debts so as to allow his defence to continue. (2) X's breach of the order requiring him to fully explain why all the money at the deceased's properties had not been accounted for was very pertinent to his claim to draw living expenses from the estate. In those circumstances he was in no position to seek the court's indulgence and his application in that regard would be refused.

Judgment accordingly

IN RE THE MATTER OF IKIN, DECEASED sub nom COURT & ORS v DESPALLIERES (2009)