constitution Flashcards
(10 cards)
Questions for constitution
- Has everything that is necessary for the transfer of property been done? (Milroy)
- Has the donor done everything in their power? (Re Rose)
- Has it become unconscionable? (Pennington v Waine)
Giving other people the benefit of the property
Milroy v Lord: you can give other people the benefit of property in three ways
- outright gift
- transfer to trustee to hold on trust
- decleration of self as trustee
equity will not perfect an imperfect gift
intention to benefit another with a gift does not count as a self decleration of a trust (Milroy v Lord)
Has everything been done?
- Jones v Lock: “I give this cheque to baby” = still not able to use the language of an outright gift as declaration of Self as Trustee (jumping over middle part, transfer to trustee to hold on trust”)
- Richards v Delbridge: No need “I declare myself a trustee,” but must do something which is equivalent to it and use expressions which have that meaning
- However anxious the Court may be to carry out a man’s intention, it is not at liberty to construe words otherwise than according to their proper meaning!
- Choltram v Pagarani: Although equity will not aid a volunteer, it will not strive officiously to defeat a gift
- Settlor/ trustee said ‘I now give all my wealth to the foundation’
- Not an outright gift becoming a decleration of self as trustee, instead becoming transfer to trustee (because a chartitable organisation is made of trustees)
Has the settlor done everything in their power
Re Rose principle: if not everything has been done that was required but the settlor has done everything in their power, equity will treat that as completely constituted.
Re Fry
has the settlor done everything in their power
If A promises B that they will give them X, or promises that they will place X in trust for them, but does neither, equity will not enforce the promise. You cannot sue for presents or gifts in equity.
Mascall v Mascall
has the settlor done everthing in their power
- Basic principle underlying all the cases is that equity will not come to the aid of a volunteer.
- Therefore, if a donee needs to get an order from a court of equity in order to complete his title, he will not get it.
- If, on the other hand, the donee has under his control everything necessary to constitute his title completely without any further assistance from the donor, the done needs no assistance from equity and the gift is complete..
Has it become unconscionable?
Pennington v Waine:
- imperfect gifts of shares, the court held that a gift could be perfected in equity if it would be unconscionable for the donor to revoke it, even if the formalities of legal transfer were not fully completed
- donor does not need to do everything within his power for equity to perfect an imperfect gift if to recall the gift would be unconscionable
- There can be no comprehensive list of factors which makes it unconscionable for the donor to change his or her mind: it must depend on the court’s evaluation of all the relevant considerations.
Shah v Shah
has it become unconscionable
‘I am as from today holding 4,000 shares in the above company for you’
- encolsed a signed stock transfer form but not shares certificate.
- Wasn’t sufficient to transfer property
- Language was self-decleration of trust (substance) so Pennington didn’t apply
Khan v Mahmood
unconscionable
- K and M - Joint legal owners of property, held on trust for themselves in equal shares. K lived there was his family. M never lived there.
- M executes defective TR1 form purporting to transfer his beneficial interest to K. M never paid the registration fee.
- K argued that equity should perfect the imperfect gift.
- Held: it would be unconscionable for M to resile from the otherwise ineffective gift here.
- Marcus Smith J: ‘Unconscionability, as it seems to me, focuses more on the conduct of the donor, whereas reliance focuses more on the conduct of the donee in respect to the donor’s gift. Whilst hard-and-fast lines obviously must be eschewed…’
