Where the defendant has received property in which the claimant has an equitable proprietary interest there are a number of personal claims which enable the claimant to recover the value of his or her property.

(i) Administration of Estates

The House of Lords in Ministry of Health v Simpson84 recognized an apparently limited personal restitutionary action in Equity, whereby beneficiaries of a deceased’s estate were able to recover money which had been paid to the defendants by the personal representatives who were administering the estate and who mistakenly believed that the money was properly paid to the defendants. This equitable action has two unusual features. First, unlike many equitable claims which depend on the defendant’s conscience having been affected in some way before equitable liability is imposed, the defendant’s liability is strict. Secondly, the beneficiaries are only able to bring an action against the recipients of the estate once they have exhausted their remedies against the personal representatives. This limitation is difficult to defend, but it may simply exist because the personal representatives can be considered to have been at fault in making the mistake in the first place and, being an equitable claim, this form of liability should prevail over strict liability.

The proper analysis of this equitable action is a matter of some controversy. It might be analysed as a strict liability equitable proprietary claim, with the beneficiaries vindicating their equitable proprietary rights against the defendants who had received property from the estate by mistake. But this proprietary analysis will not work, since the beneficiaries of an unadministered estate have neither a legal nor an equitable interest in the estate until the personal representatives have discharged all of the deceased’s debts.85 Until this has occurred, the beneficiary has only an expectation of the property being distributed. Consequently, the beneficiaries have no equitable proprietary interest to vindicate. The preferable way of analysing Ministry of Health v Simpson is that the beneficiaries are bringing a claim on behalf of the estate rather than themselves to vindicate the distribution scheme of the administration of the estate.86 The personal representatives are responsible for bringing the claim for recovery of property transferred by mistake. But, if they do not do so, the potential beneficiaries should sue the personal representatives to restore the value of the estate. If they are not able to do that successfully, Equity enables them to bring a claim against the recipient of the property. If they are successful, the value of the property received is not paid to the beneficiaries, but is returned to the estate, which still needs to be administered. Throughout this process, the beneficiaries cannot benefit directly, since they have only an expectation that they will receive something in the administration of the estate. This expectation will be defeated if the third-party recipient of the property was a bona fide purchaser for value.87

It follows that this strict liability personal claim arises in the very specific context of a defective transfer of property in the administration of an estate. Nevertheless, the strict liability claim has been recognized outside of that context. For example, in GL Baker Ltd v Medway Building and Supplies Ltd88 the principle was applied to enable a beneficiary to recover money mistakenly transferred by a trustee in the administration of an inter vivos [1] [2] [3] [4]

trust. This may be treated as an aberration or perhaps as a logical extension of the principle recognized in Ministry of Health v Simpson, under which the beneficiary has a right to sue the third-party recipient in Equity where the right to sue is derived from the trustee. But the beneficiary could not have benefited personally from this claim. If the claim was successful, the recipient would be liable to repay the money to the trust fund rather than to the beneficiary directly.

  • [1] [1951] AC 251, on appeal from Re Diplock’s Estate [1948] Ch 465.
  • [2] Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694.
  • [3] See D Sheehan, ‘Disentangling Equitable Personal Liability for Receipt and Assistance’ [2008] RLR 41,61.
  • [4] Baker (GL) Ltd v Medway Building and Supplies Ltd [1958] 1 WLR1216, 1220 (Danckwerts J); ReJLeslie Engineers Co Ltd [1976] 1 WLR 292, 299 (Oliver J). 88 [1958] 1 WLR 1216.
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