04 Exceptions to the Maxim that Equity will not assist a Volunteer

Question 1

How does the rule in Re Rose assist a beneficiary of an incompletely constituted trust?

Answer 1

According to the rule in Re Rose, provided that the transferor has done all in their power to transfer title to the property, equity will regard the transfer as effective, although some action by a third party is required to complete the transfer of the legal title.

In an incompletely constituted trust, the settlor has not vested the trust property in the trustees. However, if the settlor has done everything in their power to vest the property and anything else that needed to be done can be carried out by a third party, the rule in Re Rose applies and the trust is deemed to be completely constituted.

Question 2

What are the exceptions to the Maxim that Equity will not assist a Volunteer?

Answer 2

1. The rule in Re Rose (The ‘every effort’ test)
2. The rule in Strong v Bird
3. Donatio mortis causa
4. Proprietary Estoppel

Question 3

What are the exceptions to the Maxim that Equity will not assist a Volunteer? (detailed)

Answer 3

1. The rule in Re Rose (The ‘every effort’ test): requires proof that the donor has done everything necessary to perfect the gift.
2. The rule in Strong v Bird: requires proof of continuing intention by the donor plus the donee’s appointment as the donor’s personal representative.
3. Donatio mortis causa: applies to conditional imperfect lifetime gifts made in contemplation of death where the subject matter of the gift has been delivered.
4. Proprietary Estoppel: applies where the donor made an imperfect lifetime gift (or promised a gift) which the donee relied upon to their detriment.