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Dear Eoin,

I appreciate "the loneliness of the long distance restitution scholar", finding myself far from the hum of activity generated by restitution scholars in England (especially the SPTL All Souls seminars organised by Peter Birks). I am fortunate to be working now with 2 other restitution lawyers here at Melbourne: Michael Bryan & Mitchell McInnes.

I enjoyed reading your case note and thought that many important points were well handled. There was one hurdle to the argument which I couldn't get over: that the unjust enrichment of an unintended beneficiary under a negligently prepared will was at the expense of the intended beneficiary. One can certainly argue that there has been a non-voluntary transfer to the recipient under the will, which should lead to a (resulting) trust for the donor's estate. However, a trust (or liability) in favour of the intended beneficiary would not be restitutionary. It cannot be explained solely by reference to the unjust enrichment, but depends on the donor's intention to benefit that beneficiary. Those intentions have not been expressed in an effective form and any trust (or liability) in favour of the intended beneficiary would be, in Elias' terms, "perfectionary".

Whether one ought to perfect the intentions of the donor is another question. Perfectionary constructive trusts (eg secret trusts, under mutual wills, of family property) depend on an element of reliance or inducement which is missing in the case of a negligently prepared will. It is difficult to find a sufficient justification for ignoring the requirements of the Wills Act, although the fact that the donor is no longer able to perfect those intentions may carry some weight.

Anyway, thank you for an excellent contribution to this discussion group. More traffic would be appreciated. Many thanks to Lionel Smith for getting this going. I hope someone will be able to keep it going when Lionel moves to St Hugh's, Oxford (if not Lionel himself at the new location).

Robert Chambers
U Melbourne Law School