Limitation of Actions Consultation - Law Commission

The situation can therefore arise where over six years after a breach of trust
committed by the trustee (other than one falling within the provisions of section
21(1)(a) and 21(1)(b) of the 1980 Act) the life tenant no longer has a claim
against the trustee, but the remainderman has.
4.32 An example of the operation of the equitable rule now contained in section 21(4)
of the 1980 Act can be seen in the case of Want v Campain. 65
Here the trustees
had, in breach of trust, invested in a second mortgage which was insufficient to
secure the trust property. An action was brought against them over six years after
the investment was made by both the life tenant and two remaindermen. The life
tenant, but not the remaindermen, was barred from recovering the loss to the
estate. This money was therefore ordered to be paid into court, and the income
paid to the executors of the trustee, until the death of the tenant for life.
2. ACTIONS IN RESPECT OF PERSONAL ESTATE 66
OF A
DECEASED PERSON
4.33 Section 22 provides that:
Subject to section 21(1) and (2) of this Act-
(a) no action in respect of any claim to the personal estate of a
deceased person or to any share or interest in any such estate
(whether under a will or on intestacy) shall be brought after the
expiration of twelve years from the date on which the right to receive
the share or interest accrued; and
(b) no action to recover arrears of interest in respect of any legacy, or
damages in respect of such arrears, shall be brought after the
expiration of six years from the date on which the interest became
due.
4.34 As section 22 is expressed to be subject to section 21(1), and the definition of
trustee in the 1980 Act includes personal representatives, 67
there will be no
limitation period in respect of claims where the facts correspond to section 21(1),
that is, where there is a fraud, or where the action is to recover trust property or its
proceeds from the personal representative.
4.35 Where, in the context of the administration of an estate, section 21(1) does not
apply, the question of which of section 21(3) and 22 is applicable depends on the
capacity in which the personal representatives or trustees are acting. If they are
clearly acting as personal representatives, section 22 will apply. This will be the
case where a beneficiary is bringing an action against personal representatives who
65 (1893) 9 TLR 254.
66 In relation to the deceased person’s real property, the rules relating to the recovery of land,
and equitable interests in land, will apply: Limitation Act 1980, ss 15 and 18. See paras 6.4
- 6.41 below.
67 Section 38(1) incorporating the definition in Trustee Act 1925, s 68(1)(17). See para 4.2, n
2 above.
83