Equity and Trusts- Constitution Flashcards

Question

book- benefitting another with prop?

Answer 1

milroy v lord - identifed three ways in which absolute owner of property could benefit another with his orher prop?

Answer 2

1. outright gift 2. transfer of legal title to a third person to hold on trust for the beenfit of another 3. declaring that the absolute owner now holds that prop on trust for another

Answer 3

legal equit title to NEW ABOLSUTE OWNER TRANSFERREE

Answer 4

absolute owner transferor - TRUSTEE RECIEVES LEGAL TITLE & BENEFICAIRY RECIVES EQUIT TITLE

Answer 5

absolute owner transferor- ABSOLUTE OWNER NOW ONLY HOLDS LEGAL TITLE AS TRUSTEE. NO NEED TO TRANSFER LEGAL TITLE AS TRANSFEREE ALREADY HAS LEGAL TITLE & BENEFICARY RECIEVES EQUIT TITLE

Answer 6

keep distinct the legal req for consituion the transfer of an interest in prop and the formalites for creating and dealing iwth a trust INTEREST need good plan for this.

Answer 7

when answering q- focus will be on how equity steps in to modify the legal rules- do not wander into long exp of legal rules- brifely explain how the legal rules for transfer of title fasiled - then explain the equitable rules which may apply

Answer 8

when lawyers talk of a transfer- it is said to be perfect if all legal req for valid transfer have been complied with - if not then trasnfer said to be imperfect

Answer 9

diff legal rules apply to diff types of prop- rememebr that prop includes anything tangible or intangible that is capable of being owneed- the following sections set out the rules for the valid transfer of the most common types of prop trasnfer

Answer 10

Where vesting has occurred, i.e the Donor/Settlor has divested himself of the legal title to the property and vested it in the donee or trustee, the donor /settlor cannot change his mind and reclaim the property, Re Bowden [1936].

Answer 11

So vesting – where this occure r.a.w- Vesting legal title occurred- left the setrtlor and become invested in done (gift ) or the trustee if holding on trust and theres no going back- re bowden

Answer 12

It has passed from him completely and the donee/trustee has an enforceable interest in the property even though he may have given no consideration, Jeffreys v Jeffreys [1841]; Paul v Paul [1882].

Answer 13

The legal tile has passed over completely and the consituion of gift/trust is essentialy made out Jeffery Jeffery- paul v paul

Answer 14

The key thing is – getting that divesting of legal title from settlor in case of trust- and getting it invested into the trustee

Answer 15

Where there has been no vesting, unless a donee/beneficiary has furnished consideration, he has no basis in equity for enforcing the trust against the donor/trustee.

Answer 16

1- r.a.w so if I promised x that im going to pass legal title to him and then x wil then hold to my ming vase wil then hold ming vase on trust for y’s beneficiary but I don’t do anything –

Answer 17

the trust is not properly constituted- the legal title is not passed to x- the equitable title cannot break off and vest in y – x and y cannot seek to enforce the trust or assert trust bc it has not been properly constituted.

Answer 18

You got to feed through that legal title from settlor and invest the trustee with that legal title = key to it- at which point equit title when that has happened breaks off and trust is constituted and benficary can call for transfer of prop potentially under rule saunders v vautier.

Answer 19

In that sit if ive promised to transfer the legal title to my ming vase to x as trustee on behalf of y but don’t do it- x and y are volunteers they’ve given no consideration

Answer 20

They cannot take any action to enforce my promise to transfer the prop to them and constitute the trust- so as trustee x will get legal title and more improtan ben y wil get equit title

Answer 21

The general rule which epitomises this position is the rule: ‘Equity will not assist a volunteer’ (one who has not given consideration), or putting the same thing a different way round ‘Equity will not perfect an imperfect gift’, Milroy v Lord [1862].

Answer 22

If ive promised transfer vase but haven’t done it as outright gift to x or x hold on trust for y – x and y volunteers cant do anything for me to compel me to transfer its for me to do that, teyve given no consideration, theyre just people who haven’t furnished cons= volunteers look at case milroy

Answer 23

So if I declare I now hold this new vase on trust for hema that would be a self decl trust= paul v constance

Answer 24

Boyfriend said money as much urs as mine- joint winnings- 3 cert sats fixed trusts – c.s.m money in account cert of int- lang uses enough to show trust joint benefit or on trust – formalites – no prob- money of personalty – can have oral trust of personal property – its only land when you declare a trust have this 53 1 b rule-

Answer 25

So final stage to estab expressed private trust is constitution and if chap already owns money in bank account – he already has legal tile e.g paul v constance money on bank book id eclare much urs as mine= self decl trust- the equit title breaks off that point- trust is constituted

Answer 26

Why- cause already got legal title- declare for joint ben or whatever

Answer 27

Where a person declares himself a trustee of his own property for the benefit of another, the trust will be constituted when the declaration is made since the property will already be vested in the settlor, even where the intended beneficiary is unaware of the declaration: Middleton v. Pollock [1876]; Standing v Bowring [1885].

Answer 28

So where we have self decl trust trustee already owns legal title – so const not really big prob – equit title breaks off and trust is established – paul v constance

Answer 29

Where the subject matter of such a trust is land, the declaration must be evidenced in writing and signed by the self-declaring trustee, S.53(1)(b) LPA.

Answer 30

without it there is a trust but it is unenforceable if not in writing

Answer 31

Where the self-declaring trustee owns an equitable interest himself, this must be in writing where a disposition under S.53(1)(c) (above).

Answer 32

might about to dispos is it a valid sub trust is it a disposable- active non active did that last week

Answer 33

If a donor sets out to make an outright gift (e.g ming vase) but does not vest the property in the donee, the gift will not be enforced on the basis that the donor declared himself a trustee: Jones v Lock [1865]; Richards v Delbridge [1874]; Hemmens v Wilson Browne [1993].

Answer 34

Saying is – if im promising transfer ming vase to x – promise in writing as outight gift but don’t do it- x cant sue me cos no contract hes a volunteer- he cant compel a transfer of legal tile and what jones

Answer 35

And what jones v lock says- you cannot out of promise like that – cts wil not sort of through twisted consitruction treat that promise of outright goft- wont treat of self decl of trust bc that weren’t the intention to create trust- intention was to hand over full title ming vase- but guy never did it-

Answer 36

you cannout out of an outright promise of transfer of ownership of prop – extrapolate and twist into self decl of trust – paul v cosntance sit cos intention not there to support it- theres just no gift – jones v lock and Richards v delbr= main cases

Answer 37

So I want to transfer my ming vase to x and for him to hold it on trust for y or abc equal shares whatever you can do what you want with equity But to get that trust estab – constituted- we have to show legal title passed from me settlor and over to and becomes invested to x- once that happens equit breaks off and vest equit interest in ben under fixed or discretionary trusts if you like

Answer 38

Where S opts to create a trust with someone else as trustee (or an outright gift is made) it is completely constituted when the property is transferred to the trustee (or donee).

Answer 39

So key for constitution for passing of legal title from settlor so as to invest that legal title prop in q shares, ming vase, bicycle , the key is investing legal title or divesting it from settlor and investing transferring to trustee – that’s key to estab constituting trust

Answer 40

Real key is to understand diff legal rules which apply for assigning or transferring legal title from settlor and investing legal title in trustee

Answer 41

The law lays down different required modes of transfer.

Answer 42

- 2nd point r.a.w – on how to do this depeing on prop in q.

Answer 43

(i) Legal Estates in Land - | land- s.52 lpa

Answer 44

(i) Legal Estates in Land - By Deed, S.52(1)LPA (Freeholds/Leaseholds) - transfer is completed by reg at the land reg s. 27 land reg act 2002 Richards v Delbridge (above)

Answer 45

Gives us absolute rule- to convey or transfer land , to convey land you need a DEED

Answer 46

And formalities for a deed – set out in s.1 (2) LPMPA 1979 – need other bits req for deed- doc deed at top deed at bottom- parties to trasnsaction set out in it- both parties who assign it all set out in deed- boths sign it and witnessed – secre – someone unconnected witnessed signatures= deed

Answer 47

Check to see whether land interes 1 that need substantive reg and its only by then sending out deed tr1 sending that off to land reg who then take person whos assigning land – takes his name off reg or her name and put on the transferres name whos recieveing it – its only when the reg is changed where the interest is subst registrable the legal title is then invested

Answer 48

So you need deed and update land reg- if something that attract substantive reg – e.g freehold house and give to x to hold on trust for y – need to execute the deed s.52 1 2 – doc tr1just giving free hold title to him trasfor transferre- trasnferre have to notify ladn reg and they would update reg- at that point x then becomes legal owner of land when put on reg and im taken off-

Answer 49

If unreg freehold giving away to x youd used form fr1 – again a deed – signed and witnees sent to land reg create 1st reg and x hold trust depending on whats been set out on transfer deed- point is you need deed plus you nee to alter reg if its freehold

Answer 50

If its leasehold and more than 7 years created – 7 years run- someone hold on trust- again you need deed but need to said to land reg to alter propertieship of land reg to show change in ownership-

Answer 51

obvs if lease under 7 years e.g 5 year lease granting to someone to hold on trust for someone else then just need deed conveyance – s.52 – Richards v delbridge- don’t have to notify land reg cos under 7 years

Answer 52

So deed itself transfer legal title – but just remember lease over 7 years freeholds you need deed plus alter reg at that point you get change in legal ownership –

Answer 53

So for our purposes if I give my house to x for free- freehold tilte and ask to hold on trust for y set it out transfer use tr1 cosign witness sent to land reg – reg updated to show x trustee is now legal owner- and of course you don’t know y isn’t on reg curtain principle – equit own kicks in.

Answer 54

So what im saying to transfer legal title to freehold land even if unreg = trigger 1st reg – so freehold need deed plus sort land reg – get name on reg- that would invest transferee with legal title Leases- again have to alter reg lik freehold except leases under 7 years in which case just deed transferring legal title to recpeit trustee outright will do it. So transferring legal title land you need need and prob need to change ladn reg unless fall within exception

Answer 55

Chattels – go back to ming vase- I give my ming vase to x and ask to hold on trust for y- elgal title pass from me divest from me and invested to x when I handover vase – this thing includes such things as paintings, jewlerry etc

Answer 56

By Physical Delivery (e.g a painting) Re Cole [1964] compliance with re cole - delivery - intention that legal ownership is trasnffered

Answer 57

Re cole- physical del- will suggest transfer of elgal own- or if im in Australia and x is in London and I tell x want him to have ming vase, cant physically cos 12,000 miles away but what can do is eecute deed of deliv and have call construtctive deliv- that deed will suggest even though physically hasn’t got vase he is now vested in legal title to it and if holding on trust that will constite trust or outright gift it will constitute the outright ownership of gift with legal and eq title passing

Answer 58

By Deed of Delivery Jaffa v Taylor Galleries [1990]

Answer 59

glaister-carlisle v glaister carlisle

Answer 60

req for deliv can be actual deliv or constructive. this may include for e.g deliv of cary keys, represtning the deliv of car itself. it may also be informing the intended donee where he or she can find the chatel - thomas v times book co

Answer 61

Company shares – how transfer legal title to company shares

Answer 62

By memorandum of transfer in the form contemplated by S1. Stock Transfer Act 1963, S.770-771 Companies Act 2006 coupled with Registration of the shares,

Answer 63

Milroy v Lord [1862] | Trustee of Pehrsson’s Property v Van Greyerz [1999], Re Rose [1952].

Answer 64

In nut shell need to sign transfer form bit like tr1 and that needs to be sent to company who has register of shares who will update reg to show change in lawful owner of those shares, its again 2 together which will bring about change in legal title

Answer 65

So if I want to give my 5000 in xyz limited to A to hold on trust for b- I need to sign a stock transfer form and have that sent to company officers who will change reg, the share reg, the reg of shareholders

Answer 66

to show that A as trustees now lawful owner of those batch of shares-

Answer 67

At that point the legal title in A – the equit title breaks of and trust of shares is constituted.

Answer 68

Milroy v Lord- only way change legal title to constitute absolure gift of shares given them away or given them away on trust to cosnittue trust – is to make sure the ransfe form gets through and the reg shows change in ownership if you alter the reg.

Answer 69

If you haven’t done that the gift absolutely on trust is not cosnittued- theres been no divesting of legal title to the intended recipient absolutely as gift or as trustee.

Answer 70

That strict rule is mitigated quite considerably by doctrine what we call case re rose

Answer 71

Re rose shows equity at its most flex and talks about doctrine whats called every effort.

Answer 72

Re rose says is transferor of shares has made every effort to transfer the legal ownership of shares and put control of those shares put custody in control of those shares out of his power i.e he she made every effort to effect transfer but some reason hasn’t happened, equity will treat transfer as something happened, and effectively transferor will be treated as constructive trustee of the shares for and on behalf the intended transferee. So the equit ownership shifts.

Answer 73

So a wants to transfer shares to b – haven’t been any cases where the tranfers been a to b on trust- its just been from a to b as absolute gift which hasn’t happened for some reason,

Answer 74

So like a may have signed transfer form but in share certify ownership with form – posted –recorded deliv to companies registered offices to have registers shifted but the letters been lost or destroyed in post. If a can show he made every effort like that to transfer legal own shares in favour of b- but for some reason didn’t get through- re rose says-

Answer 75

Equity will forgive lack of formal transfer and treat there has been a shift in intended real ownership the economic value of shares in equity in favour of recipeient. And that’s done through device of treating transferor as a constructive trustee bc hes still on the reg, hes still technically legal owner holding shares on cosnturctive trust for b

Answer 76

We impose constructive trusts whereve justice and good conscience require it- so shift in equitable ownership the economic real important value of shares takes place behind a constructive trust where you can show transferor made evry effort to transfer legal title to shares even though the transfer was never formally effectuated by altering register.

Answer 77

So for that to work the transferor has to really not put off/sign share certify- sign off shared transferred form- say to b look oh im gonna transfer to you and put in draw- every effort wouldn’t work there bc he still has custody and dominon over share certify of form and man can always change his mind.

Answer 78

But if hes gone further and put it in post-ordinary post or recorded deliv and prove he done that to witnesses. Then hes put it pout of his power, hes given up physical control and hes made every effort, then its down to post-

Answer 79

If all this can be proved the intended recipeitn shares to receive them as trustee on trust for x or as outright gift which cases tend to relate to, can say well hes made every effort to transfer the shares and equity will forgive lack of formal transfer hes still on reg and treat him as legal owner shares, but under constructive trust kicks in in favour fo intended recpeit and they recive transfer of beneficial title.

Answer 80

But to do that as an exception you have to show DOCTRINE OF EVERY EFFORT HAS BEEN MADE by trasnferer to divest himself of legal ownership which for some reason hasn’t happened , so out of his custofy ad power, hes given up control of the documents and put process in train

Answer 81

So is this every effort- exception rule in re rose must be aware of.

Answer 82

Also relevance here pennigton v wayne again involving shares – which purport transfer shares- the cts tried to further bend and extend the elasticity of law here but didn’t really touch every effort doctrine but well see at back of doctrine of properiretay estoppel they tried to further loosen up the rules on incomplete trasnfers, so as to allow for shift in real equitable own of shares where transfer has been unsuccessful, well come to that in a moment.

Answer 83

Re rose and Paddington v wayne are very much cases which stand as exceptions to strict rule in milroy v lord which says that until shift legal title on share reg theres no change in ownership.

Answer 84

So there are exceptions that doctrine in equity wont perfect imperfect gift. Re rose says it can every effort and Paddington can be done through prop estoppel if show it would be unconscionable to deny that theres been a transfer in equitable owner detrimental rwliance, shares then this can be used to constitute .. Come on that more detail soon.

Answer 85

- memorandum of transfer - registration of shares - stock transfer act 1963 Companies Act 1985

Answer 86

if there has ben compliance with the electronic crest system then the correct instruction will be adequate milroy v lord

Answer 87

Just on shared trasnfers, old fashioned way is to signt he stock share transfer form share certify and post toc ompany offices udpoate share reg when that’s done legal title shares shifts to outright done or person taken as trustee

Answer 88

After 1996 certain Plc’s dispensed with share transfer forms and relied just on registration due to the introduction of Electronic share transfer CREST system.

Answer 89

After – r.aw. Where instantoeus t4asnfer of shares take place. Obviously where that has been put into effect it reduces scope for every effot and Paddington exception cos press few buttons its done

Answer 90

Choses in action- things in action like copyright, the benefit of a contract,

Answer 91

x owes me 100,000 POUNDS AFROEM LAST UEAR to be repaid 1% interest by trofay and hasn’t repaid it by midday as a debt, I can assign the right to sue and collect for that debt to another person, say a bank, who can give me say 50,000 full and finals ettlement, and they pick up exclusively the right then to pursue x for the 100,000, if they can do it they make profit but have risk of enforcement this is sometimes called factoring

Answer 92

Factoring=I can assign the benefit of contract, right to sue and collect for debt in this fashion, people claiming debt this is how it happens. The right to sue and collect a debt, the right to sue on the contract toe nforce benefit of contract is property bc its assignable

Answer 93

Not burden of contract only the benefit, the right to sue and enforce the benefit is assignable- this is a choses ina ction

Answer 94

and you can assign it, you don’t need deed or anything, just simple written notice of assignment with do it. S.136 lpa –

Answer 95

assignor assignee to bank- you just simply notify the person who owes money cosent just tell them. And then right to sue and collect that debt passes exclusively to assigne

Answer 96

Obvs if they sue for the debt and the other person counterclaim or something, they take the assignment subject to equities . Subject to any defences that person may have had against me but assignment is effected by simple written notice of assignment under s.136 lpa

Answer 97

The benefit of contract, right to sue and collect for debt owing is proeperty, that’s why dealth with lpa and that the assignment rule s.136

Answer 98

includes things such as debts, or rights under a contract

Answer 99

complaince with s.136 law property act 1925 which requires endorsement see jones v lock 1865

Answer 100

a valid transfer of money merely requires delivery.

Answer 101

Said you can dispose of them transferor transferred needs to be effectuated by a signed written doc.

Answer 102

By disposition in writing under S.53(1)(c ) LPA -A written disposition s.53 1 c

Answer 103

another type of prop that can be trasnferred is the owenership of a beneficial interest - legal req to trasnfer this interest s.53 1 c this applies to ben interest in any type of prop not just interest i land. this type of trasnfer wil be dealt with later,

Answer 104

these clear legal rules, from either stat or common law, for the valid trasnfer of prop rights provide the necc certainity in dealing with property ownership. learn the legal req for each type of prop covered in this chap. explain this first in an exam before moving on to say that equity has devleoped means to overcome of imperfect title transfer

Answer 105

As mentioned earlier a where settlor declares himself trustee, we can have self decl of trust.

Answer 106

Where a settlor declares himself one of several trustees and manifests an immediate and irrevocable intention to create a trust of specific property, a perfect trust is created. creates a valid trust - book - where legal title has not vested correctly, equity has estab exceptions to the legal rules outlined earlier. it is improtant to estab legal rules first , then consider which - and there may be more than one- of the equitable rules apply to perfect title. EQUITABLE PRINCIPLES WHICH PERFECT A TRASNFER

Answer 107

So if hes one of several trustees a b c on trust for x y z and a holds legal title to prop and he declares that he holds that prop on such a trust, that will generate a valid trust.

Answer 108

This will be the position even though the settlor fails to transfer the property in its entirety to the third party trustees.

Answer 109

But if a already owns prop and declares valid trust in favour of x y z in terms that a b c will be trustees. As A already owns legal title that’s enough to do it and constitute others as trustees even though at that juncture they do not actual have legal title. Because a got it that’s enough

Answer 110

This comes from tricky case above | -Choitram v Pagrani [2001].

Answer 111

The office of trusteeship is joint and several and the retention by the settlor of the property as trustee is equivalent to all the trustees acquiring the property, – this is the rule – this is the odd rule but nonethlees the rule which is relevant here from this case.

Answer 112

Exceptional Situations where Vesting of legal title in Donee/Trustee is deemed to have occurred in equity- even though hasn’t been a official handover of legal title

Answer 113

(a) Where donor/settlor has made ‘every effort’ to transfer the property. 1st except – doctrine of every effort- case re rose

Answer 114

However equity more flexibly recognises that vesting takes place once a donor/settlor has done ‘everything in his power to divest himself of the property’ even if the law requires some further task such as registration, Re Rose [1952]; Mascall v Mascall [1985] contrast Re Fry [1946].

Answer 115

( every effort to transfer legal title – posted etc but some reason letter doesn’t get through if tou can proe happened, re rose for gives lack of transfer lefal title and says the changeover has occurred in equity)

Answer 116

So if I wanted to give shares to a , I signed transfer firm, transfer to comp in q – to show a is to be new owner, but the letter destroyed in post, if I can prove all that been done, doctrine of every effort, will kick in and the transferor .

Answer 117

The legal title hasn’t changed but in equity, treat equitable ownership as shifting, ill be a constructive trustee, equitable titel breaks off in favour of transferee, who then under saunders v vautier can call for formal transfer again from me of legal title.

Answer 118

Re rose involved shares- trasnfer effectvie, trasnferor did all he could to compelte trasnfer 'gone beyond the point' - in effect trasnferor has practically lost dominon of the property

Answer 119

Mascall v mascall = same idea involving reg land – father promises son he could have prop, signs tr1 transfer deed sends it to land reg doesn’t quire get through so q is , father changes his mind but after hes reelased doc so has every effofrt been made?

Answer 120

re fry - trasnferor had completed forms to trasnfer title and sent the forms to be registered. company needed the consent of the treasury to make the reg. the trasnferor completed all forms to get consent but had died before cosnent given. ct held that the trasnfror still held pwoer of shares and had not done all that was req to trasnfer them

Answer 121

if rule can be gleaned from cases. it seems from mascall that cts would perfect the trasnfer when the transferor can no longer change his or her mind and the prop has been taken out of the control of trasnfeor.

Answer 122

unconscionability

Answer 123

In Pennington v Waine [2002] the CA relaxed the requirements further by holding that a gift of shares was ‘assigned in equity’, by the execution of a share transfer form without delivery to the donee or company or registration of the transfer. On the facts the donee had relied to his detriment on the transfer going ahead by becoming a company director.

Answer 124

Pennigton v waine – idea even more flex introduced by equity in constituting trusts of shares or outright gifts transfers of shares,

Answer 125

Held gift of shares assigned in eq where transferor mother and son assigned its shared transfer form (need to do) put shares in envelope but tehyw erent actually deleiverd to the company offices. So no parting of possession or custoday taken place by transferor but, the son on facts of that case. In anticipation of becoming owner of the shares undertook work company sec, relation shares existed so he acted to his DETRIMENT

Answer 126

Detriment (change of pos- he said there was assurance hed been given shares and on absis of assurance shares should be ctrasnfgerred to him which weren’t he then acted to his detrim. And basis on that he said UNCONSCIONLE FOR NOW TRASNFEROR, mother to deny the purported transfer od shares

Answer 127

So equity steped in and said she held shares as constructive trustee for son. So it loosens the flexible rule even more. It goes beyond every effort and introduces quite controv req

Answer 128

Says even if haven’t parted with custody of shares, theres been an assurance, shares would be handed over, a transfer effectuatred through the normal means, on the strength of that assurance youd be given shares, you rely to that detriment

Answer 129

Q- at equirties point of view is it now uncocnsioable trasnfere to enag on their promise to transfer shares when then fall out, and here propertiary estoppel effectively kicks in and supports the impostion of constructive trust

Answer 130

So transferor would be intended trasnforo would be constructive trustee holidng shares on constructive trust in equity for trasnfeeree. So legal titel stays same but the equit ownership shifts through estoppel, behind device of constructive trust bc to not allow= uncons result all bc trasnferre had acted to his detriment on promise of transfer

Answer 131

Pennigton = controversial some people like some people don’t.

Answer 132

Its interesting 1 sense cos talks about prop estoppel in relation to personalty not land, pure case involving pure personalty.

Answer 133

book- un con

Answer 134

This position required him to own the shares. The court claimed it would be inequitable and unconscionable to permit the donor to recall the gift. When the donor died it was therefore held that the shares were no longer part of her estate.

Answer 135

When transferor died, held shres , part of the state but real ownership and equity had passed to son under this constructive trust and he was entitled to real economic valu of shartes

Answer 136

Ct claimed r.a.w cos assurance reliamnet and detriment o permit- he relied on promise to detriment and that’s what made in inequitable for her to enate on promise and c.t kicked in

Answer 137

(b) Where vesting occurs by other means

Answer 138

(i) Where a donor expresses an intention to make an immediate gift of property but dies not having transferred to the donee/trustee, the gift will ordinarily founder on the principle that equity will not assist the donee to perfect the gift.

Answer 139

They wont help somebody whos given no consideration, no contract.

Answer 140

legal title vests in another capacity (fortuitous vesting)

Answer 141

where the legal owner promises to trasnfer prop (or promsies that he or she will not enforce the repayment of a debt, but fails to do this in hhis or her lifetime, the gift should fail. hw if the prmise prop vests in the potential referree in another capc, the cts have held that the transfer has been perfected - STRONG V BIRD - to be able to rely on the rule stong v bird requirements..

Answer 142

Few more exceptional rules developed. 1 strong v bird explain in collier

Answer 143

The donee may however rely on the rule in Strong v Bird [1874]. This rule was explained in Collier v Calvert [1994] as:

Answer 144

‘Where the donor maintains an intention to make a gift but does not perfect it and dies having appointed the donee personal representative of the estate so that legal title vests on the death of the donor in the donee…

Answer 145

..equity’s assistance is no longer required to order the transfer of the legal title to the donee. In view of the continuing wishes of the donor in such circumstances, no one has a better equity than the donee. So equity refuses to intervene against the donee…’

Answer 146

Another case if you get legal title through back where didn’t get through front, it doesn’t matter, the fact is you have legal title and that will perfect the gift,

Answer 147

That general notion seen from rather complicated case, re rallis wills trust- its another confirmation, basic idea that if you’ve been promised prop- no transfer owenership, if Theres a death, strong v bird- will and person promised the prop is personal rep, continuing intetio, they get legal title by op of law when seized dies, that perfects there gift of ming vase,Same where intestates

Answer 148

Re rally just another ccase, extentsion of that idea. If you end up getting legal title by diff route it doesn’t actually matter but that in itself will perfect a gift.

Answer 149

- there is clear intention to make an intervvos gift to the trasnferree - there is present intention to give ; re freeland - the intention continues unchanged until death - re gonin - the intended transferee obtains legal ownership by appointment as excutor or personal representative - re james

Answer 150

when reading the exam ensure that you note who the executors are. this is usally at the end of the q. ensure that u reald the whole q.

Answer 151

intention must be clear intention to give immediately and there has only been some practical barrier to teh trasnfer. it must not be an intention to give in the future. the rule orginated in release from debts but it has been extended to chattels - re stewart and to an intention to trasnfer the legal title to hold as trustee- re rallis wt.

Answer 152

it is not clear whether dec in re rallis wt is an extension of strong v bird or a diff peinxiple all together.

Answer 153

propery tranferred under a wil must comply with wills act 1837- s.9 will must be writying, signed by tesr, wit by 2 people who not ben . hw a deathbed bequest can supersede the will if t complies with the requirements of a donation mortis causa

Answer 154

as set out in cain v moon & recently reviewd by c o a in king v dubrey i.e

Answer 155

- iif the bequest is made in contemplation of imminent death - if the bequest is made contingent (conditional) on death; and - there is actual/constructive deliv of prop

Answer 156

this si more than contemplation of death which everyone must face. it can be contemplation of hazardorus undertakings, acting service during war or dang trip.

Answer 157

it will not matter that death actuallt occurs by diff means in wilkes v allington the donor had terminal cancer bu actually died of pneumonia. this was still held to be valid. it will not comply in contemplation of suicide.

Answer 158

if the transferor recovers, the intended gift fails. therefore the gift is revocable if death does nto occur. it can also be expressly revoked or by taking back dominon of the prop

Answer 159

this means transferor hand dominon to the transferre, by give tranfee the meants to control prop. this will be depen on nature of prop. where good a re tangible may not be diff but where prop intang e.g money = evidential problems. in the latter sit the cts will look fro rel evidence to indicate the trasnger of dominion.

Answer 160

not too sure id examined but they are not voluntteers bc given consid during marriage setllement- look on slides to skin over

Answer 161

could connect with marriage settlements

Answer 162

a covenent is promsie contained in a deed

Answer 163

So if im a settlor and I promise transfer money to a trust trustees or to chattels or painting or something and worth a lot of money and don’t transfer but give a coveneant a promise by deed to transfer that prop to trustees who then if have it would hold legal title on trust economic own for ben – if I don’t follow through my promise what is my pos?

Answer 164

A covenant in this context is a promise by Deed to transfer property.

Answer 165

Equity will not enforce S’s covenant to transfer property to trustees by decreeing specific performance if it is not supported by consideration, Re D’Angibau [1880].

Answer 166

By contrast, the common law will enforce the covenant against the covenantor (me I made a promise) without requiring consideration from the covenantee.

Answer 167

There cannot be a trust of ‘future property’ Re Ellenborough [1903] (property expected to be inherited at a future date).

Answer 168

Re cook- r.a.w – sometimes you see with these old fam settlemetns and cov to transfer prop to trustees of settlement, the settlor / trasnferr say mng vase to trsutees or paintings= easy

Answer 169

but he might promise transfer future prop e.g when grandma dies = future prop and not really prop and it doesn’t count

Answer 170

Future prop aka expectancy not really prop from point of view law of trust- re ellen

Answer 171

Because grandma might change her mind and leave to secret lover in will and you get nothing – promise to inherent is worth nothing until you get it.

Answer 172

A DMC is a lifetime gift which is conditional upon, and takes effect upon, death. Dmc – exception to equity wont perfect and imperfect or assit volunteer Means gift of prop which is made in contemplation / conditional on death –

Answer 173

so youre going in for really big op in hospital hand over keys ferrair- if I dotn come out alive oyu can have car- will elabes to mistres- if he can show valid dmc- valid gift made in contemplation of death which conditional on death he will win and that trousts the wil

Answer 174

Cos treated in sense as intervivos gift and that beats what happened later on when acc dead- that’s when will kicks in – its like a prior equity and that beats will like in those estoppel cases

Answer 175

So a dmc not really an outright int gift bc its conditional- you only get car when fies

Answer 176

Nor test gift- s.9 Sort of falls btw 2 – it’s a form of intervivos gift – a conditional lifetime gift but the condition is death – made when guyd alive. So it operates in equity really as another exception- equities elasticity. Another except to rule

Answer 177

It is neither an inter vivos gift in the strict sense, nor is it a testamentary gift (which need comply with the formalities laid down in the Wills Act 1837). It is another exception to the rule ‘equity will not assist a volunteer’, or ‘equity will not perfect an imperfect gift’.

Answer 178

Russell CJ laid down three conditions required for a successful DMC:

Answer 179

(i) the gift must be in contemplation of the donor’s death (ii) the donor must intend the property to revert to him if he does not die; (iii) the subject matter of the DMC (or the means of gaining ‘control’ over it) must be ‘delivered’ to the donee.e- by handing over car keys

Answer 180

If the subject matter is such that delivery would not suffice to constitute a lifetime transfer, title to the property will not vest automatically in the donee/trustee on the donor’s death but will pass to his personal representatives.

Answer 181

There isn’t dmc case – saying can u please hold on trust for mary – dmc giving rise for valid trust but theres no cases for it- its basically 1 bloke saying to best mate if I don’t make it can have car- straightforward gift with no trust for somine else But there is dmc cases that have perefected outright gift

Answer 182

Death need not be by the contemplated cause, but gift must be made in contemplation of death generally for a valid DMC, Wilkes v Allington [1931] doesnt matter that cause of death wasnt death contemplated- its just death generally needss to be conremplated. wilkes v allignton

Answer 183

Equity will however ‘perfect the gift’ by compelling the personal representative to complete the transfer if valid dmc- it beats the will, see,

Answer 184

Re Mead [1880] (gift of negotiable instrument)’; Birch v Treasury Solicitor [1951] (gift of money in deposit account); Sen v Headley [1991] (gift of donor’s house).

Answer 185

so we have to look at diff props here to see how rules play out

Answer 186

(i) Where the subject matter is a chattel and it has been delivered to the donee or trustee or he has been given the means of gaining access to it (such as the keys to where it is kept) the donor’s death perfects the gift, Woodward v Woodward [1991] (car keys). - e.g handing over car keys - amount to sufficent deliv of chattel

Answer 187

Re Lillingston [1952] 2 All.ER184 Donor gave donee key to a trunk which contained the key to a safe deposit at Harrods which in turn contained the key to a safe deposit box at the National Safe Deposit and Trustee Co. Held:- There was a valid DMC of the jewellery in the trunk and the contents of the safe deposit boxes.

Answer 188

(ii) There must always be an intention on the part of the donor to part with ‘dominion’ over the property.

Answer 189

(iii) Where the subject matter is a chose in action e.g painting ming vase or bike, mere delivery of title documents will not suffice. (shares certif/ money in bank) so you need to handover with these choses in actionthese types)

Answer 190

Donor must hand over essential indicia of title (doc which demonstrate title), possession of which entitles the donee to the money or property, e.g bank deposit book, Post Office Savings Account Bank-Book, national saving certificates, cheque or promissory note payable to donor.

Answer 191

so its a cheque payable to donor- someone owed him moneyh before he died

Answer 192

(iv) Since the recent case of Sen v Headley [1991] (CA) land can now be the subject matter of a DMC. before that case used to say coudnt have dmc with land but you can now

Answer 193

In Sen claimant given keys to a steel box containing title deeds, and house was promised to donee. DMC upheld. It was stated the title deeds were the essential indicia of title (unregd. land) and had been constructively delivered to her by the handing over the keys. (unreg freehold title house) the equiv to title deed in reg would be land certif which confirms what is on land reg who wons prop. equiv to indico of title

Answer 194

See also: King v Dubrey [2014] EWHC 2083 Vallee v Birchwood [2013] EWHC 1449 case note in conveyance and prop lawyer few years ago 2014/15- tap in westlaw this cases look at them suggestion made cts getting bit too genrous with interp these dmc rules- people always have fear of death etc where does the dmc doctrine begin and end and often old people fearul and say things- note of caution made in case notes and conveyenacer dealing witht ehse 2 cases together - which suggest cts being slightly gen inthere interp of dmc critera generally- espec vunerable ppl

Answer 195

(v) For a DMC, evidence need be established of the donor intending an ‘immediate gift conditional on death’. No DMC can exist if donor’s intention was to make a ‘future gift’ or an ‘immediate absolute gift’. The intention either way can be express or implied from the circumstances. have to look carefully what said by donor or he could habe said furtue gift need to say clearly itnended gift to take effect ond eatha nd had contemplation when made that promise and handed over suff indicito of title or controling means of prop depeind on prop- its a q of evidence#!

Answer 196

(vi) No DMC is possible of donor’s own cheque /promissory written in favour of the donee as a cheque is always revocable until cashed, - bc cheque treated as soemthing u an rip up- until its cash - its a revocable comand Re Beaumont [1902].

Answer 197

(vii) Shares in a public company can be the subject of a DMC, Staniland v Wilmott (1852).

Answer 198

(viii) Shares in a private company may possibly not be subject to a DMC, Ward v Turner (1752) Moore v Moore (1874) Re Weston [1902].This is controversial however. not readliy accesib but thats not really poitn theyre both prop and should eb able to make dmc with both

Answer 199

In respect of shares in a public company Staniland v Willmott (1852) suggests handing the donee an executed share transfer form is sufficient for a DMC of the shares. It is unclear whether mere delivery of the share certificate will suffice, Australian case suggests it will, see, Dufficy v Mollica [1968]. ina way it is prove- engish case says no have to sign off shares aND TRASNFER FORM

Answer 200

Where there is a valid DMC of property such as land, or money in a bank deposit account, where transfer of dominion is symbolic, equity will compel the personal representatives of the deceased’s estate to do whatever is necessary to complete the formal transfer.

Answer 201

but have to prove dmc in first place if not take to ct and win

Answer 202

seen with penenigtion v waine

Answer 203

The doctrine of proprietary estoppel may also be used in equity so as to ‘assist a volunteer’ (X), whereby the volunteer (X) has mistakenly built upon Y’s land, and Y, knowing of the mistake has failed to set X right. Y cannot then claim the improved land with a building on. .

Answer 204

Y is estopped from doing this and X can claim a licence or transfer of the land in question from Y. By Y’s inaction he has made a passive assurance to X that it was alright to so build. X is a volunteer but equity can nonetheless award him a remedy in this unusual scenario.

Answer 205

See, Lord Kingsdown’s speech in Ramsden v Dyson (1866) and judgment of Fry J in Wilmott v Barber (1880).

Equity and Trusts- Constitution Flashcards

(244 cards)