Haastrup & Anor v Haastrup & Anor

A beneficiary may bring a personal claim against an executor de son tort for an account and inventory, without suing as personal representative or on behalf of the estate. Such a claim is not an incurable nullity merely because the claimant had no grant of administration when proceedings began. The court must characterise the claim from the pleadings and substance of the relief sought. A limited grant under Senior Courts Act 1981, s 116 is discretionary and requires special circumstances; a grant ad colligenda bona is ordinarily directed to preserving assets and normally requires an independent and impartial appointee. The availability of an account and the claimant’s lack of independence may justify refusing such a grant.

The claimants sought an injunction concerning proceeds from the sale of property formerly owned by the second defendant company and an account from the first defendant concerning his dealings with the estate of the deceased. The defendants applied to strike out the claim or obtain summary judgment, arguing that the claimants lacked standing because they had no grant of administration. The claimants applied for a limited grant under Senior Courts Act 1981, s 116, or alternatively for joinder of the estate. The central issues were whether the claim was brought on behalf of the estate or personally as beneficiaries, whether it was maintainable against an executor de son tort, and whether a limited grant should be made.

1. The defendants’ applications for strike-out and summary judgment were dismissed. The claimants brought the claim on their own behalf as beneficiaries, not as personal representatives or on behalf of the estate. The crossed-out wording on the claim form and its absence from subsequent orders did not alter that substantive characterisation.

2. An estate beneficiary can maintain a claim for an account against an executor de son tort. It was unnecessary for the claimants expressly to describe the first defendant in those terms. The rule in Ingall v Moran [1944] KB 160 and its application in Milburn-Snell v Evans [2012] 1 WLR 41 therefore did not require strike-out, since those authorities concerned a person claiming on behalf of an estate without a grant.

3. The defendants had not shown that the claim had no reasonable prospect of success. The evidence and submissions on summary judgment were directed principally to the alleged nullity arising from the absence of a grant and did not establish that the executor de son tort claim could not succeed.

4. Obiter, a grant ad colligenda bona is ordinarily made to preserve assets pending determination of entitlement, generally through an independent and impartial appointee. Section 116 permits a limited grant, including a grant ad litem, where special circumstances make appointment of another person necessary or expedient. The claimants’ personal interests and involvement in related litigation meant that they lacked the requisite independence. The existing freezing injunction and the prospect of obtaining an account meant that a limited grant would not significantly improve the position of the estate or claimants.

5. The court declined to decide whether a subsequent grant could retrospectively cure an action begun without a grant. The decision in Meerza v Al Baho [2015] EWHC 3154 (Ch) was distinguishable because a grant had been obtained before the strike-out application; here no grant had been obtained and the proposed limited grant would have been refused.