Limitation of Actions Consultation - Law Commission

have wrongly distributed the estate. 68
It will also apply to claims by beneficiaries
against someone who has been wrongly paid or overpaid by the personal
representatives. 69
Even then, if the personal representative was fraudulent, section
21 applies and there will be no limitation period. But if executors are also
appointed as trustees by the will and they have validly assented the estate to
themselves as trustees then section 21(3) will apply. 70
Because of the lack of
formality required to effect a valid assent of personalty, it is sometimes far from
clear when the line between executorship and trusteeship is crossed. 71
4.36 The limitation period under section 22(a) begins on the date when the right to
receive the share or interest accrues and not, in accordance with the language
found elsewhere in the 1980 Act, when the beneficiary’s cause of action accrues.
This will apply to actions against personal representatives, and to actions brought
against persons wrongly paid or overpaid out of the estate. 72
It appears that the
“right to receive” accrues on the date of death of the deceased, even though the
beneficiary will not be able to enforce that right until, at the earliest, one year has
expired after the death. 73
Although it is widely accepted to be the law, 74
the judicial
authority for this rule, which leads to the anomalous result that time will run
against a plaintiff before he or she has a right to commence an action 75
is actually
not very strong. 76
68 Although if the personal representatives have acted honestly and reasonably, their liability
may be mitigated by s 21(2): see para 4.24 - 4.26 above.
69 Re Diplock [1948] Ch 465, 512 affirmed sub nom Ministry of Health v Simpson [1951] AC
251, 277. This case rejected the approach taken by the court in Re Johnson (1885) 29 Ch D
964, applying the Real Property Limitation Act 1833, s 8.
70 See, eg, Re Richardson [1920] 1 Ch 423; Re Oliver [1927] 2 Ch 323. See also Williams,
Mortimer and Sunnucks on Executors, Administrators and Probate (17th ed 1993), p 907.
Because the limitation period under s 21(3) is shorter than the one under s 22(a) it has
been suggested that where executors are also appointed as trustees under a will it is prudent
for them to assent property to themselves as trustees at the earliest possible date, as long as
this does not involve fraud: see, eg, A McGee, Limitation Periods (2nd ed 1994), p 253.
71 See, eg, in a context other than limitation, George Attenborough & Son v Solomon [1913] AC
76.
72 Re Diplock [1948] Ch 465, 512 - 514; affirmed sub nom Ministry of Health v Simpson [1951]
AC 251, 277.
73 Administration of Estates Act 1925, s 44. This period is commonly referred to as “the
executor’s year”.
74 A McGee, Limitation Periods (2nd ed 1994), pp 254 - 255; T Prime and G Scanlan, The
Modern Law of Limitation (1993), p 234.
75 Ibid. There is a parallel (noted by McGee) between the position of a beneficiary against
whom time is running under s 22, and that of potential plaintiffs who are unable to
commence proceedings because of a procedural bar, but against whom time runs: see paras
9.26 - 9.27 below.
76 See, eg, Re Deeney [1933] NI 80. The Court of Appeal in Northern Ireland, in that case,
was following the Court of Appeal’s decision in Hornsey Local Board v Monarch Investment
Building Society (1889) 24 QBD 1, which is itself sometimes cited as direct authority (see,
eg, A McGee, Limitation Periods (2nd ed 1994), p 255). Hornsey Local Board v Monarch
Investment Building Society concerned the limitation period in respect of a statutory public
health body’s right to apportion the cost of street works among adjoining property owners,
including the defendant. It was held there that the words “present right to receive” (in
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