Claims Against Estate
Claim to Estate
A claim to the estate of a deceased person, whether under a will or intestacy, must be bought within six years of the date when the right to receive the share or interest accrues. This limitation does not apply to an action taken by a personal representative in order to recover the assets of the deceased in the hands of third parties. Accordingly, there is a time limit of 12 years in which to recover real property, which forms part of the deceased’s estate from third parties.
The Statute of Limitations time limits does not normally run as between trustee and beneficiaries. The Succession Act provides that the fact that a person is a personal representative does not make him a trustee. Accordingly, if he is a beneficiary, he may bar the rights of other beneficiaries. Accordingly, the personal representative may acquire title by adverse possession as against other beneficiaries.
A person in possession of property comprised in a deceased’s estate in his capacity as bailiff for another is not a trustee within the statute of limitations. A bailiff is a representative, and accordingly, his possession is not adverse. The purpose of the section is to provide that that time starts running against minor beneficiaries after they reach the age of majority. Accordingly is not entirely clear if it has this effect.
Under the Succession Act, persons who acquire title by entering into possession of the estate of the deceased acquire title by joint tenants. This seeks to ensure that where the title to the property is not formally administered and is acquired by long possession by several persons in possession, typically over several generations, as those persons die, their entitlements pass to the surviving persons in possession. This tends to simplify the title by reducing the number of persons with an interest in the property.
Statutory Claim to Estate
An application by a child for provision out of the estate of a deceased parent must be made within six months of taking out representation. This applies even though the person for whose benefit the application is made may be under the age of eighteen.
A person or representative must notify the spouse of his or her right to take the legal right share of the deceased’s estate. The right is not exercisable after six months from the date of the notice or [one year] from the taking out of representation, whichever is later.
The surviving spouse of a deceased may require the personal representative to appropriate the dwelling house in satisfaction of his or her share of the estate. The spouse, if he or she wishes to do so, must exercise the right of appropriation within six months of notification or one year of representation, whichever is later.
No appropriation shall be made unless notice of the intended appropriation is served on all parties. The time limit for any party served with the notice, to bring an application objecting to the appropriation is six weeks from the date of service of that notice. The notice must be accompanied by the requisite information.
Apart from some of the death-related time limits a person under a disability (minority, unsound mind) has a period of three years after cessation of disability in order to make a claim to an estate or share of an estate.
Limitation periods Trusts and Estates
The statute of limitations provides a six-year time limit for breach of trust. This period is postponed, where the breach is fraudulent or where a trustee has wrongfully withheld or converted trust property to his use.
The statute of limitations provides that a “trustee” does not include a person whose fiduciary duty arises merely by implication of law. Such a person is not deemed to be equivalent to an expressly appointed trust. Therefore, persons who are deemed to be in a fiduciary relationship, by reason of their position or their actual relationship with another, are deemed trustees for the purpose of the act.
A personal representative is not a trustee for the purpose of the act. The Official Assignee is not a trustee. In the bankruptcy context, a person whose fiduciary relationship only arises because he is in possession of assets comprised in the estate of a deceased person.
Where any person has a pre-existing fiduciary duty and uses the beneficiary’s monies in breach of that duty, he is a trustee for the purpose of the legislation. Where there is no prior relationship, he will not generally be a trustee.
Fraud
Persons who dishonestly or knowingly receive monies which belong to another are trustees for the purpose of the Act. No period of limitation applies against a trustee or a person claiming through him, where the claim is found on fraud or fraudulent breach of trust, to which the trustee was a party or privy or the claim is to recover trust property or the proceeds are also retained by the trustee or previously received by the trustee and converted to his use.
Generally, fraud in this context refers to dishonesty. It may refer to a breach of trust in itself. Fraud may cover fraudulent concealment, which is a general ground for postponing the statute.
Where a trust property is held by a trustee, the time limit does not run until demanded.
Equitable Relief
Equitable relief is subject to the same time limits as apply to analogous common law relief. Some equitable actions, such as an action for an account, are themselves subject to specific provisions in the statute of limitations.
Equitable relief is subject to the principles of laches and acquiescence. Under these principles, an equitable remedy may be refused after a much shorter time limit than that applicable under the statute of limitations. In such cases, equitable relief may be denied and a common law relief such as damages only may be granted.