Green & Ors v Gaul & Ors

A claim to remove and replace the personal representative of an unadministered intestate estate falls outside section 22(a) of the Limitation Act 1980. Where that section does apply, time cannot begin before the administrator is able to distribute the residuary estate.

A beneficiary’s claim requiring a personal representative to account for estate property, and to pay the amount found due, falls within sections 21(1)(b) and 23. No statutory limitation period applies. The absence of a statutory period does not exclude the equitable defences of laches or acquiescence. Those defences require a broad assessment of whether permitting the beneficiary to assert the right would be unconscionable in all the circumstances.

The administratrix of an intestate estate had failed for many years to complete the administration or provide an adequate account. Three beneficiaries sought her removal, the appointment of an independent administrator, an account of estate assets and payment of the balance due.

Lawrence Collins J rejected an alleged family compromise and ordered the administratrix’s replacement and an account: [2005] EWHC 406 (Ch). He also rejected limitation and laches defences. The appeal concerned whether section 22(a) of the Limitation Act 1980 barred the removal and accounting claims, whether sections 21(1)(b) and 23 displaced section 22(a), and whether laches remained available where no statutory limitation period applied.

1. The appeal was dismissed unanimously. Section 22(a) of the Limitation Act 1980 did not apply to the claim to remove and replace the administratrix. Its statutory ancestry concerned claims to receive personal estate, not the subsequently created jurisdiction to replace a personal representative. There was no reason for time to run against a beneficiary seeking replacement where it would not run in an administration action.

2. Where section 22(a) does apply, the period does not necessarily begin one year after death. It cannot begin before the first grant of representation. The better view is that it begins only when the administrator has paid or provided for the costs, expenses, debts, liabilities and pecuniary legacies payable from the estate and is first able to distribute the residuary estate. Until then, the beneficiary has no presently distributable residue, although an administration action remains available to address unjustified delay.

3. The claims for an account and payment concerned real and personal property received by the administratrix. A personal representative is treated as a trustee for this purpose. The claims therefore fell within section 21(1)(b), directly or through section 23. No limitation period prescribed by the 1980 Act applied, and section 22(a) was inapplicable.

4. Section 21(1)(b) did not exclude laches or acquiescence. Its words exclude periods prescribed by the Act; they do not abolish equitable defences. Section 36(2) expressly preserves the equitable jurisdiction to refuse relief for acquiescence or otherwise. In re Pauling’s Settlement Trusts concerned protection against shortening an express statutory period. Gwembe Valley was not understood as establishing the wider contrary proposition, which would also conflict with Patel v Shah.

5. The equitable defence nevertheless failed. The controlling inquiry was whether assertion of the beneficial right would be unconscionable in all the circumstances. The administratrix knew that no compromise had been concluded and that proceedings were threatened. The beneficiaries had done nothing to encourage a belief that their rights were abandoned. Any evidential difficulty resulted from her own decision not to pursue estate assets or perform her duties.

1. Court of Appeal (Civil Division): The appeal was dismissed. The orders removing and replacing the administratrix and requiring an account and payment remained in force: [2006] EWCA Civ 1124.
2. High Court, Chancery Division: Lawrence Collins J rejected the alleged compromise, removed the administratrix, appointed an independent replacement and ordered accounts and consequential payment: [2005] EWHC 406 (Ch).