Practice and procedure—limitation—contentious trusts and estates
Practice and procedure—limitation—contentious trusts and estates

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Practice and procedure—limitation—contentious trusts and estates
  • The purpose of limitation
  • Determining the limitation period
  • When time runs from
  • When time stops running
  • Limitation periods
  • Actions in respect of trusts
  • Actions in respect of estates
  • Actions in respect of probate
  • Actions for an account
  • More...

The effect of the expiry of any limitation period under Limitation Act 1980 (LA 1980) is merely to bar the claimant’s remedy rather than to extinguish the claim. It is for a defendant to plead limitation as a defence and if validly pleaded, it provides a complete defence to a claim. When pleaded, the burden is on the claimant to prove that they are within the limitation period and if proven, the burden then passes to the defendant to prove otherwise.

ss 21, 22 and 23 of LA 1980 restate the previous position under sections 19 and 20 of the Limitation Act 1939 and applies to executors and trustees as well as the trustees of express, resulting and constructive trusts of property. LA 1980 maintains the distinction between:

  1. trustees found guilty of fraud or who have retained trust property or converted it for their own use, and

  2. trustees who have committed and innocent or negligent breach of trust

The purpose of limitation

Limitation is the period of time in which a claimant may bring an action for redress. Its purpose is to regulate the balance between the competing and conflicting interests of the parties:

  1. the interest of the claimant in having the most extensive opportunity to pursue a claim for redress, and

  2. the interest of the defendant in not having to defend a stale claim because:

    1. it

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