Vous êtes sur la page 1sur 3

Seminar 5: Constitution of Trusts and Imperfect Gifts

Required Reading:
Pearce and Stevens Chapter 7, pp. 164 194.
T. Choithram International SA v. Pagarani [2001] 1 WLR 1
Pennington v Waine [2002] EWCA Civ 227, [2002] 1 WLR 2075
Margaret Halliwell Perfecting Imperfect Gifts and Trusts: Have We
Reached the End of the Chancellors Foot? [2003] Conv. 192
Jonathan Garton The Role of the Trust Mechanism and the Rule in
Re Rose [2003] Conv. 364
Todd Re Rose Revisited [1998] CLJ 46

1. Explain the relevance of the following maxims to the constitution


of trusts:
(a) Equity will not perfect an imperfect gift. Imperfect gift stay as
imperfect gift
(b) Equity will not assist a volunteer.
(c) Equity follows the law.

2. The two Re Rose cases decided that a gift could be perfected by


means of a trust when the donor was awaiting decision of an
external authority (board of directors). Is that principle compatible
with the decision in Re Fry?
- In Rose, where correct method is used to transfer legal title, no
further action is necessary and decision is irrevocable, the legal title
has moved
- in Re Fry, Where the donor has power to do more, Re Rose does
not apply
- Re Rose may be reconciled with Re Fry on the ground that in the

latter case the transferor had not done everything required of him to
transfer the property before his death. He had not obtained Treasury
approval which was mandatory in the circumstances.
3. The law on perfect gifts and perfectly constituted trusts has
been tolerably clear since Milroy v Lord in 1862.. Unfortunately
Pennington v Waine represents the situation of a court according
itself unfettered (unrestricted) discretion with possibly far-reaching
consequences for voluntary dispositions of property. (Margaret
Halliwell).
Pennington v Waine - Unconscionable to for Ada to change mind and
goes back to the transfer.
Critically consider these statements.

4. Iain has learnt that he is seriously ill. At first he faces his illness
and possible death with a degree of acceptance. He hands his
daughter Jeannie the passbook for his account with the Nationwide
Building Society, in which he has a substantial balance. He gives his
son Kenneth the Land Certificate relating to a small plot of land that
he (Iain) had purchased ten years ago, and on which he intended to
build a bungalow for his retirement. A couple of months later Iains
condition has got seriously worse, and so he takes an overdose of
tablets. He dies. Iain has not made a will, and the whole of his
estate is claimed by his wife Moira, from whom he had been living
separately from many years. Jeannie and Kenneth respectively claim
the balance in the Building Society Account and the plot of land.
Would it make any difference to your answer if Iain had purchased
the land after the land registry ceased to issue a unique Land
Certificate for each plot, and Iain had instead handed over to
Kenneth a photocopy of the land register printout?
- Deathbed gift ; requirement laid down in Cain v moon

(a) gift must be in contemplation, but not necessarily in


expectation, of death; Iain is seriously ill, but he taken overdose
tablet, is it suicide?
Can u invoke DMC (Donatio Mortis Causa) doctrine if suicide? If
the time you contemplating your death is actual death, it
doesnt matter if suicide.
(b) the subject matter of the gift must have been delivered to
donee;
(c) there must have been an intention that the gift should
revert to donor if s/he recovers.
Land Certificate not same to deed. Deed is more powerful, strong
evidence.

Vous aimerez peut-être aussi