QUESTION 1:

Freddie was very rich. He was also obsessed with the idea that he was dying but was
actually in very good health. Having made generous provision for his family in March
2015, he;

a) handed over the (non-bearer) share certificates of his shareholdings in the Grace
company to Harry saying "hold these shares on trust for Iona" and Harry agreed to do
so;

b) covenanted with Jerry to transfer to him £100,000 to be held by him on trust for Ken
but nothing has yet been transferred to Jerry;

c) handed the only key to his safe to Locke saying to him "I'm not going to live long. I
want you to take the £100,000 cash in my safe and the title deeds to my mansion which
are there too. You are to keep £20,000 of the cash for yourself and hold the rest of it on
trust. I shall tell you for whom in due course. And you are to hold the mansion on trust
for Marie". Locke replied "OK, if that's what you wish".

Before doing anything further, Freddie was struck by lightning and killed in April 2015,
dying intestate.

Jerry is Freddie's sole administrator and next of kin.

ANSWER:

1. Freddie was very rich. He was also obsessed with the idea that he was dying but was
actually in very good health. Having made generous provision for his family in March
2015. Before doing anything further, Freddie was struck by lightning and killed in April
2015, dying intestate. Jerry is Freddie's sole administrator and next of kin.

Intro: to have express private trust u need capacity, three certainties, and then formalities
and constitution.
Formalities: if a trust is for land:
- Writing
- In a deed
- Signed
- LPA 1925 section
Formalities if it is not land:
 - The three certainties

Structure:

Sui juris? Yes, then Three certainties? Yes, then Fully constituted? No? any exceptions.

THE EXCEPTIONS: Contract, proprietary estoppel, strong v bird, DMC.

a) He handed over the (non-bearer) share certificates of his shareholdings in the Grace company
to Harry saying "hold these shares on trust for Iona" and Harry agreed to do so; obsessed
with the idea that he was dying but was actually in very good health

Is Freddie capable of creating this trust? (sui juris) Is he of suitable age and mind. Mind might be
disputed; how did he know he would die? but not sufficient to establish mental illness so ignore
it.

Three certainties: knight v knight (first from wright v atkyns) – since its shares and not land the
only formalities you need are the 3 certainties.
- Intention clearly shown from conduct and words. Titcombe v ison. No use of precatory
words.
- Subject matter was given to the trustee. Those specific certificates are clearly identified
but it is non-bearer so not properly constituted. The certificates are non-bearer meaning
the one that has them physically does not own them. The property will not vest.
- Object depends on whether there are multiple Iona’s in the family.

Must be properly constituted (re rose, re fry). Property must be transferred to the trustee. This is
done by the settlor transferring title to someone else as a trustee, themselves, or both.
An exception to the strict rule here (everything not being done well) is DMC. It will apply here.
Form of transfer being handing the certificates.
To qualify as a donatio mortis causa: (DMC)
- The gift must be made by the donor in contemplation of the donor's impending death-
Freddie, in his mind, was about to die. no need to explain the fact that he contemplated
his death, just that he did. (discuss Mental Capacity Act)
- The gift must be contingent on the donor dying- he dies.
- The donor must part with the gift or deliver it in some way to the donee- delivered in
some way by physically handing the certificates. Discuss here, the non-bearer aspect.
- The subject-matter of the gift must be capable of being given away in this manner- not
able to be given in this way (non-bearer again). Discuss.

b) He covenanted with Jerry to transfer to him £100,000 to be held by him on trust for Ken but
nothing has yet been transferred to Jerry;

Is Freddie capable of creating this trust? Is he of suitable age and mind.

Three certainties:
- Intention clearly shown. Same as above.
- Subject matter stated but NOT successfully transferred or segregated. Where is the
money coming from, no alternatives provided. Trustee does not have ownership of the
subject matter and can not operate on it. Because of this the trust does not exist.
- Object is Ken (beneficiary). The object also depends on how many Kens are in the
family. His full name is not stated. But identified. – not that important.
Not properly constituted because the money was not segregated.
BUT because he had contemplated death and had actually died, DMC may be used and the trust
may be allowed but the question remains, where is the money coming from? Discuss. Strong v
Bird exception will also be applied.

EXCEPTIONS:
- Donatio mortis causa (gift be death)- Sen v. Headley [1990] 2 W.L.R. 620.
 - Another exception – Strong v Bird : Jerry is Freddie’s sole administrator – so when
Freddie dies jerry will take hold of his estate anyway and then it is his duty to distribute it
regardless. So, the trust is construed.

c) He handed the only key to his safe to Locke saying to him "I'm not going to live long. I want
you to take the £100,000 cash in my safe and the title deeds to my mansion which are there
too. You are to keep £20,000 of the cash for yourself and hold the rest of it on trust. I shall
tell you for whom in due course. And you are to hold the mansion on trust for Marie". Locke
replied "OK, if that's what you wish".

a. 20,000 euros to Locke

b. 80,000 euros to unknown. – this would fail because no certainty of object – would be a
resulting trust to the administrator or estate or a gift.
c. Mansion to Marie.

Three certainties:

a. intention shown through conduct and words. Subject matter clearly separated. The key and
location of safe is provided. and object clear. Likely allowed. * doesn’t. need to be separated as it
is the same. But also physical (gold bar case?).

b. intention clear from words and conduct- as above. Subject matter known, but object
unidentified. Likely void. No known alternatives because no one is known to benefit from the
trust. Alternatively, the subject matter becomes a gift to the trustee or reverts to the settlor.

c. intention clear, subject matter identified, and object identified. Unless several Marie’s exist.
Trusts of land require a deed under s.1 TOLATA 1996 and must be in writing according
to s53(1)(b) LPA 1925. and signed by settlor or will (no will here). MARKS ONLY FOR
WRITING – DON’T DISCUSS SO MUCH ABOUT TOLATA AND LPA
Discuss – did he do everything in his power? Was it sufficient?
QUESTION 2: Equity will not assist a volunteer – except when it will – discuss.

Rule:
A ‘volunteer’ is someone who has not provided consideration for a certain transaction such as a
gift. The donor would have made an ineffective gift to the volunteer and retains legal title.

Similar to “equity will not perfect an imperfect gift” Jones v Lock. However, the firmness of this
principle has been softened by a range of exceptions to the rule.

In Milroy, it is established that everything must be done before transfer may be complete. Turner
LJ says a gift may be recognized in equity by transferring the property for whom he intends to
provide, transferring the property to a trustee for the purpose of a settlement, if it is declared that
he himself holds it on trust for its purposes.

BUT:

Because it is so harsh, law softened: Re Rose. Last act doctrine. Transfer will be completed as
long as the settlor has done everything in his power to complete the transfer. Here, The
donor put the transaction beyond their control by sending the documents to a third party.
Similarly in Mascall v mascall, handing a deed of transfer and land certificate to the donee made
the transfer effective, by showing the attempt to complete the transfer.

Also, T Choithram International SA v Pagarani where the courts applied a ‘benevolent

construction and held that it was sufficient for one of the trustees to have legal title even if the
others did not. There was a duty to transfer the property to the other trustees. The court
emphasized the unconscionability of allowing a donor to retract a gift, reinforcing the strict
adherence to the principle that equity will not assist a volunteer.

Exceptions:
The "Bird exception," as established in Strong v Bird (1874) L.R. 18 Eq 315, is one such
instance. In this case, a stepson was released from an outstanding debt when appointed as the
sole executor of his stepmother's estate. The court recognized a voluntary release without
consideration under specific circumstances, deviating from the general maxim to achieve a just
outcome.

Another exception is evident in the concept of "donatio mortis causa" (gifts in contemplation of
death), as seen in Re Rose [1952] Ch 499. Despite the donor's death occurring before the full
transfer of shares, the court held that the shares were held on trust for the intended donee. This
exception allows for the enforcement of gifts made in anticipation of the donor's death,
illustrating a departure from the strict application of the maxim in certain circumstances.

Finally, Proprietary estoppel which aims to compensate a claimant who has suffered a detriment
caused by reliance on a representation by the defendant. Pascoe v Turner 1979 where a man left
his wife and said she can keep the house, leading her to maintain and repair the house. In the
eyes of the law, the ex-partner who left is the legal owner but because the wife acted to her
detriment, she was entitled to some compensation. The law employs a broad construction of what
type of conduct is required to succeed in a claim for proprietary estoppel. Also, Re Basham,
mere oral evidence of a gift of a house by the daughter’s stepfather was enough for proprietary
estoppel to be found, the detriment coming from caring for the stepfather when he was ill.

Also contracts.

…
The Rule in Strong v Bird, Donatio Mortis Causa and Proprietary Estoppel.

First, Strong v Bird. Here, a deceased person must intend to make a gift of property, while
contemplating death. The donne may be named an executor of the deceased's estate, the gift is
deemed to have been completed. There are three requirements for the rule to operate; Firstly,
there must be an intention to make an immediate gift, Secondly, the intention must continue until
death, Finally, the donee must obtain legal title in the property, in the capacity of either as
executor or administrator. However, there exists considerable debate about whether this rule
should be applied to administrators at all. This can be seen as harming the property as the
beneficiary has not provided sufficient consideration of benefitting the property. However, this
exception can complete an incomplete gift as was the case min Re Stewart 1908.

Donatio Mortis Causa otherwise known as a ‘gift in contemplation of death’, sometimes a gift is
given by a person that expects or contemplates that they may die soon. These are typically made
by people who are seriously ill or about to undergo major surgery and by people who are about
to travel fearing the worst may occur. To make a gift surrounding this nature the person in
question would have to give up all control to the recipient and only become the absolute owner
after death. This was invoked by the methods set out in Cain v Moon. There needs to be some
intention shown to give up dominion of the ownership, an example would be case of Sen v
Headly 1991, where someone was on their deathbed and the partner was by them at the time. In
this case the settler is on their deathbed and intended to transfer their house to their partner
showing intention to give up dominion. An extensive list of exceptions were developed to the
rule in Milroy which led to the courts to give effect to the intentions of the settlor rather than
seeing the property fall into residue. However these exceptions do have some complications and
the courts are still trying to find new and effective ways to perfect imperfect gifts.

INTRO:
Explain the maxim of equity that is: equity will not assist a volunteer - re roy, re rose, re fry
choitrams