Defective Transfers

Question 1

Three Certainties

Answer 1

Intention
Subject
Object

Question 2

Re Beaney

Answer 2

Necessary mental capacity increases with value/size of gift

Question 3

‘Bulk of’ is unclear for certainty of subject

Answer 3

Palmer v Simmonds

Question 4

Subject matter is certain if the settlor provides a workable formula

Answer 4

Re Golay

Question 5

For certainty of subject, must segregate tangible items of trust property from like items

Answer 5

Re London Wine Company

Question 6

For certainty of subject, need not segregate intangible items if items are indistinguishable, ie identical shares

Answer 6

Hunter v Moss

Question 7

For a trust, intention is ascertained by words or conduct

Answer 7

Paul v Constance

Question 8

Beneficiary Principle

Answer 8

There must be identifiable human beneficiaries who can enforce the trust

Question 9

Rule against perpetuity for a discretionary trust

Answer 9

Rule against remoteness of vesting

Max 125 years

Question 10

Rule against perpetuity for non-charitable purpose trusts

Answer 10

Rule against alienability

Limited to 21 years, or allow trustees to spend all trust capital on the purpose

Question 11

Formalities required for declaration of land transferred for trust

Answer 11

Evidenced in writing, signed by the transferor

Question 12

Formalities for declaration for a trust of items other than land

Answer 12

None needed (writing desirable)

Question 13

Formalities for transfer of chattels

Answer 13

Physical delivery (Re Cole); or
Deed

Question 14

Jaffa v Taylor Gallery

Answer 14

If physical delivery is impossible, the item may still be considered transferred

Question 15

Formalities for transfer of shares

Answer 15

1. Complete and sign stock transfer form (STF)
2. Send STF and share certificate to transferee
3. Transferee must send documents to company to register new owner

Question 16

Formalities for transfer of land

Answer 16

Must be done by deed

s. 52(1) LPA - need to send deed to Land Registry and notify as new legal owner
s. 1 LP(MP)A - deed in writing, signed, witnessed and delivered as a deed

Question 17

Formalities for transfer of equitable interests

Answer 17

s.53(1)(c) LPA

Can be done by:
Assigning equitable interest to the other person directly; or
Beneficiary can direct trustee from now on to hold trust property for other person

Question 18

Grey v IRC

Answer 18

Transfer of equitable interests must be declared in writing

It must be signed by person disposing of the interest/an authorised agent or in will

Question 19

Milroy v Lord

Answer 19

General rule: No equity to protect an imperfect gift; equity will not benefit a volunteer; equity will not construe a trust from an invalid gift

Question 20

Strong v Bird

Answer 20

On the death of a donor, donee can claim legal title if:

a. Transfer fails due to not satisfying formalities;
b. Intention to make immediate gift by donor;
c. Intention continues until death; and
d. Donee becomes executor/PR/administrator of donor

Question 21

Re Rose

Answer 21

A gift is complete in equity if the donor has done everything they can

Question 22

Pennington v Waine

Answer 22

Extends Re Rose principle to gifts, even when they don’t meet every effort threshold.
Must be unconscionable to invalidate disposition

Question 23

Cholthram International v Pagarani

Answer 23

If transfer is defective, equity will not strive officiously to defeat a gift. Rather, may interpret gift as a trust if the settlor is a trustee.

Question 24

Exception for transfer of equitable interests

Vandervell v IRC

Answer 24

If interest is under a bare trust, and beneficiary directs trustees to transfer equitable state with intention of transferring legal estate too.
s.53(1)(c) LPA will not apply

Question 25

Vandervell v IRC

Answer 25

Oral instruction will be sufficient to transfer equitable interests when transferring legal estate too