BPP GDL Study Notes Ch 5: Constitution Flashcards
What is the leading case on constitution? What issues developed from it?
- Milroy v Lord
1) settlor must follow the methods appropriate to transferring the property
2) settlor must appropriately confer the benefit of his property to another
3) judge must be aware that equity will not perfect an imperfect gift
How is legal estate in land transferred?
- by deed: s52(10 LPA 1925
What constitutes a deed? Where is a deed defined?
- s1 LP(MP)A 1989. Must be:
- written
- signed
- witnessed by at least one independent witness
- describe itself as a deed
- be delivered
What else could a deed be called?
- if the land is unregistered freehold the deed is a conveyance
- if the land is registered at HM Land Registry the deed is called a transfer.
- if the land is a leasehold the lease is called an assignment
How are shares in a UK incorporated company transferred?
Stock Transfer Form and registration
- Stock Transfer Act 1963:
- shares must be transferred by the transferor signing a stock transfer form in favour of the transferee
- transfer must be registered in the company’s share register
- title passes on registration
Can a company refuse to register a share transfer?
- public limited companies generally cannot refuse to register
- private limited companies often restrict share transfers and directors may restrict transfers based on this,.
How are chattels transferred?
- deed of gift, or
- actual delivery
- plus intention to transfer by transferor
How can bills of exchange be transferred? Give an example of a bill of exchange?
- eg a cheque
- for a BoE in the name of the transferor:
- endorse the cheque (sign the back)
- Bills of Exchange Act 1882
How is money transferred?
- only by actual delivery. Cheques etc don’t transfer until they are cleared.
How are choses in action transferred?
- in writing given to the debtor
- s136 LPA 1925
How are equitable interests transferred?
- signed writing
- s53(1)(c) LPA 1925
How are debts transferred?
- debts are choses in action
- therefore in writing given to the debtor
How can a settlor DURING HIS LIFETIME confer the benefits of property on another?
1) absolute gift to B
2) transfer to trustees to hold on trust for B (settlement by transfer)
3) declares himself a trustee for B (declaration of trust)
How can equitable interests be disposed of? According to what case?
Timpson’s Executors v Yerbury
1) assign directly to 3rd party
2) direct trustees to hold on trust for 3rd party
3) contract for valuable consideration to assign equitable interest to 3rd party (sell)
4) can declare himself to be a trustee for 3rd party
What is the equitable principle in regards to ineffectual transfers?
- equity will not assist a volunteer
- if S attempts to use one method to confer a benefit on B and fails to do so effectively, equity will not save the gift.
Why did the attempted trust fail in Milroy v Lord?
- S intended to create a settlement by transfer
- S failed to vest legal estate in T
- equity does not interpret the attempt as a declaration of trust
- S was not treated as a trustee instead
What happens if an attempted gift fails? In what case did this happen?
- Jones v Lock
- father intended to give an absolute gift to his son but failed to endorse the cheque and property had not been transferred
- therefore had no intention of declaring himself a trustee for his son
- therefore no trust created.
What general exceptions are there to the principle that equity will not assist a volunteer or perfect an imperfect gift?
1) where S has done everything in their power to effect the transfer, the transfer can be treated as effective
2) where legal title has vested in the donee/trustee in a different capacity
3) death bed gift (donatio mortis causa)
4) where proprietary estoppel operates
What happened in Re Rose?
- court ruled a transfer was effective in equity once S had done everything in his power to vest shares in Ts.
How was the decision in Re Rose modified by a later case?
- Pennington v Waine
- from Re Rose transfer only effective once it would be impossible for S to recall the gift
- made a transfer effective once it became unconscionable for S to recall the gift
- ‘unconscionable’ must be decided on a case by case basis.
How can legal title vest in a donee in a different capacity?
- eg Strong v Bird: debt imperfectly released
- common law: legal title to S’s property passed to B as executor so could not hold a debt against it.
- equity: intention to forgive a debt evidenced by the debt holder making the debtor her executor
How does the rule from Strong v Bird apply to gifts that will be given in the future?
- intention to make a gift in the future only an unenforceable promise
- Re Freeland
- must be an intention to give an immediate gift
- this did not exist because the car in question needed to be recovered from a third party.
How does the rule from Strong v Bird apply where there are multiple personal representatives?
applies the same way: Re Stewart.
How was the rule in Strong v Bird extended by a later case?
- Re Ralli’s Will Trust
- extended to treat a trust as properly constituted if trust property comes into the trustee’s hands in any legitimate capacity
