How to use an injunction in a will dispute: a tale of two sisters, one estate and zero intention to pay
There are times when you need to fight fire with fire. In a dispute over money or a property if there’s an attempt to frustrate the claim by disposing of an asset, for example a property, an injunction can be a useful tool.
In one of my cases, I acted for ‘Jane’ in a claim against her sister ‘Susan’. Their mother, ‘Ann’ had moved in with Susan and her husband Bill a few years before she died when she started to show signs of dementia and it became clear that she wasn’t going to be able to manage living in her own home any longer.
Most of the proceeds of the sale of Ann’s home were invested by her into Susan and Bill’s property to build a ‘granny flat’ for her. The solicitors who dealt with the sale of Ann’s home recommended in a letter to Ann, that a trust deed be drawn up to set out the proportions in which Ann, Susan and Bill were to own the property, once the ‘granny flat’ had been built. For one reason or another, that never happened.
Jane’s understanding was that her mum owned 25% of Susan and Bill’s property as a result of her investment.
Jane and Susan fell out and although Jane was able to see her mum regularly, she and her sister weren’t on good terms.
When Ann died, Jane knew that her mum had left a will leaving everything to her and Susan equally. But her sister refused to produce the will and told Jane that, anyway, there was ‘nothing left’. Jane was aghast and came to me for advice. Susan was forced to produce her mother’s will which confirmed that her estate was to be split equally between the sisters. Susan tried to argue that the funds her mum had put into the property were a gift, in exchange for looking after her. That argument was abandoned when the solicitor’s advice letter to Ann recommending a trust deed surfaced! It was then accepted that Jane was due some money but not how much.
Jane then found out that Susan and her husband were planning to sell their home (their only significant asset). As Susan didn’t work and her husband was self-employed, there was a high risk that if they sold the property, even if Jane won her case, she would be unable to enforce any judgment against her sister or Bill; they might simply ‘do a flit’ with the proceeds of sale. This was a real problem. Jane couldn’t prevent the sale by putting a Restriction on at the Land Registry as the case hadn’t yet gone to court; we had no order confirming Jane had any legal interest in the property.
I wrote to Susan’s solicitor to ask for an ‘undertaking’ – a formal, written binding promise to put to one side a lump sum from the sale of the property. As no undertaking was provided, the only option was to issue an application in the county court for an injunction. After a contested hearing before a District Judge, it was ordered that the sale of the property could only proceed on the basis that a fixed sum from the proceeds of sale were to be held by my firm, pending the outcome of the litigation.
An injunction like this is an option of last resort, not least because the costs of obtaining one can be high.
The principles that a judge will apply when considering an application for an injunction are:
- Is there a serious issue to be tried? If yes,
- Would damages be an adequate remedy for a party injured by the grant or the failure to grant an injunction? If not
- Where does the balance of convenience lie?
The judge must be satisfied that there is evidence of a real and imminent risk of the asset in question being dissipated, and that the main claim has reasonable prospects of success.
In Jane’s case, the injunction application was successful, and the case settled later on at mediation. If the injunction had not been granted, I have no doubt that Susan and Bill would have sold their home and Jane would never have seen a penny of her inheritance.