equity and trusts all

• Equity


  A branch of law that developed to provide remedies and rights that were not available under the common law
• Equitable Interventions


  For when the Gift is not satisfied through the formalities of Delivery, Intention, and Acceptance
• Milroy v Lord (1862)


  • Three ways to give something to another: 1) Actually transferring the property to the persons for whom he intends to provide, 2) Transferring the property to a trustee for the purposes of a settlement, and 3) Declaring himself as trustee for the same purposes
• One of the three methods in Milroy v Lord must be resorted to and the court will not step in to apply another of these methods if the intended method failed
• Strong v Bird (1874)


  Exception to the Requirement of Delivery - If the donee of a promised gift obtains title to the gift in another capacity, this will be sufficient to perfect the gift in Equity, usually as executor
• The Rule in Re Rose


  Recognised the creation of an equitable proprietary interest, even though title had not yet passed at Law
• Re Rose


  • The donor had done everything that was in his power to do to transfer the shares
  • The transfer was still conditional upon the discretion of the directors of the company
• The 'Last Act' Doctrine


  The threshold for a donor should be to achieve everything in his power in the ordinary way of transfer
• The Re Rose principle has been applied rather generously in some cases, such as Re Motor Paradise Co Ltd (1968) and Mascall v Mascall
• In Pehrsson v Von Greyerz (1999), the Privy Council suggested limiting the scope of application of the Re Rose principle, but this suggestion was not followed by the courts
• Pennington v Waine (2002)

  Broadened the scope of the Re Rose principle by holding that a transfer was completed in Equity because it would have been unconscionable for the donor to deny the gift, even though the donor had not committed the last act
• Dogget (2003) criticised the reasoning in Pennington v Waine, particularly the reliance on the concept of unconscionability from T Choithram International SA v Pagarani (2000)
• Multi factorial approach


  • Weigh all factors
  • No comprehensive list of factors which makes it unconscionable for the donor to change their mind
  • Depends on the court's evaluation of all the relevant considerations
• Choithram


  Unconscionability was applied to simply extend Choithrams' existent trusteeship to the rest of the group of trustees
• Pennington has broadened the Re Rose principle with questionable reasoning to the extent it seems unrecognisable from its former self and incompatible with the law set out in Milroy v Lord
• Language in Zeital v Kaye 2010 judgement is much more compatible with the orthodox interpretation of the Re Rose principle
• Zeital v Kaye 2010

  Actively retreating from Pennington
• Curtis v Pulbrook [2011] EWHC 167 (Ch)


  1. Last act, per Re Rose [1952]

  2. Donee has relied detrimentally on gift

  3. Benevolent construction of words (Pennington influence, 'an implied trust can be teased out of the words')
• Curtis v Pulbrook [2011] EWHC 167 (Ch) demonstrates an attempt to return to orthodoxy in the use of the last act language whilst providing continued recognition of the approach in Pennington
• Briggs J in Curtis v Pulbrook [2011] EWHC 167 (Ch) identified three ways in which equity can perfect a transfer
• The uncertainties of the Re Rose principle is not a new concern raised by Briggs
• Donatio Mortis Causa


  Deathbed gift- this equitable doctrine operates to render a gift effective in Equity, even where the requisite formalities have not been complied with
• Donatio Mortis Causa - only become irrevocable upon the donor's death, and before that point they are free to change their mind
• If the three criteria for Donatio Mortis Causa has been fulfilled, it is just for Equity to perfect the imperfect gift by compelling the personal representatives of the deceased to perfect the donee's title, even though the donee is a volunteer
• Donatio Mortis Causa


  • Sen v Headley - land could be the subject of a donatio mortis causa
• Requirements for a valid gift of tangible personal property (Cochrane v Moore)

  1. Delivery (actual, symbolic, constructive)

  2. Intention to give immediate gift

  3. Acceptance by donee
• Express Trust


  A trust is a legal relationship in which one party (the trustee) holds property for the benefit of another (the beneficiary)
• Inter Vivos Gift Laws


  Laws governing gifts between living people
• 3 ways to constitute a valid trust

  • Make an outright gift of the property to B
  • A declares herself/himself trustee of the property to hold on trust for B (self-declaration)
  • A transfers the property to C as trustee, to hold on trust for B (declaration still required)
• Milroy v Lord provides that these trust creation methods are separate and the courts will not construe an intention to gift as a declaration of trust
• Requirements for an express trust as per Knight v Knight


  • Certainty of intention to create a trust
  • Certainty of subject matter
  • Certainty of objects
• Intention to create a trust

  Must be evident through interpretation, using imperative words rather than precatory
• Precatory words


  • Lamb v Eames 1871 - 'his widow was to use the property at her disposal in any way she may think best'
  • Re Diggles 1888 - 'It is my desire'
• Imperative words


  Comiskey v Bowring Hanbury [1905] - 'I hereby direct'
• A trust must be intended and not a sham, as per Midlands Bank v Wyatt [1995]
• Sham trust


  When the settlor and trustee neither know nor care what they are signing
• Certainty of subject matter


  The subject matter of the trust must be sufficiently identifiable

  Palmer v Simmonds
• Sufficient certainty of subject matter

  • Re Golays WT 1965 - 'a reasonable income from the rest of my properties'
• The trust property must be kept separately from the trustee's own assets

  London Wine Company
• Certainty of objects (beneficiaries)


  Four requirements: conceptual certainty, evidential certainty, ascertainability, and the 'is or is not' test for discretionary trusts