Formalities

Question 1

What is required for the transfer of land?

Answer 1

Deed - s.52 LPA 1925
(Formalities of deed: signed and witnessed - s.1 LP(MP) 1989)
Register transfer - s.27 LRA 2002/s.4

Question 2

What is required for the transfer of company shares?

Answer 2

Delivery of share certificate and signed stock transfer form - s.1 Stock Transfer Act 1963
Note that also need to register ownership change with company

Question 3

What is required for the transfer of banknotes and chattels?

Answer 3

Delivery with requisite intention

Question 4

If physical delivery of a chattel is not possible what else would be effective for transfer? What is the authority for this?

Answer 4

A deed would be effective - Jaffa v Taylor Gallery Ltd (1990)

Question 5

How do you dispose of an existing equitable interest?

Answer 5

Signed writing - s.53(1)(c) LPA 1925

Question 6

Do you need signed writing when concerned with a disclaimer regarding equitable interests? Authority?

Answer 6

No - Re Paradise Motor Co Ltd [1968]

Question 7

What happened in Grey v IRC [1960] and why was it significant?

Answer 7

Instructions for transfer to trust for grandchildren orally, but stamp duty charged on later written document of confirmation. HL held that disposition holds its natural meaning (and this was a disposition). Ongoing trust - disposition of equitable interest and void because not in writing.

Question 8

Do you need signed writing where disposition of an asset not actually in existence at the time? Authority and what the case concerned?

Answer 8

No - Re Danish Bacon Co Ltd [1971] which concerned right to receive lump sum from pension scheme arising from future death

Question 9

What happened in Vandervell v IRC [1967] and why was it a different outcome to Grey v IRC?

Answer 9

Signed writing held not to be required where beneficial owner who was solely entitled orally instructed trustees with legal and equitable interest to third party.
Different outcome because trust extinguished because transfer of legal and equitable title.

Question 10

What do you need to do to declare a trust on death and what is the authority for this?

Answer 10

You need a will signed in writing in the presence of two witnesses present at the same time who attest via signature
S.9 Wills Act 1837

Question 11

What do you need to do to declare a trust for personalty inter vivos? What is the authority?

Answer 11

Can be very informal - words or conduct will suffice following Paul v Constance [1977]

Question 12

What do you need to declare a trust inter vivos concerning land? What is the authority for this?

Answer 12

Evidenced by signed writing - s.53(1)(b)

Question 13

What are the three methods of transferring ownership of an asset during lifetime? What is the authority for this?

Answer 13

Milroy v Lord (1862)

1. Outright gift
2. Settlor declares self as trustee
3. Transfer to trustees for them to hold on trust

Question 14

If a person intended to transfer an asset using one of the Milroy v Lord methods, will the court give effect to it by applying one of the other modes?

Answer 14

No

Question 15

What happened in the case of Jones v Lock (1865)?

Answer 15

An intended outright absolute gift of cheque to baby could not be an effective declaration of trust. Illustrates point that when intend one method of transfer will not give effect to it via another.

Question 16

Which case demonstrates a more flexible approach to the Milroy v Lord methods of transferring ownership during lifetime? What was the reasoning of the court?

Answer 16

T. Choithram International SA v Pagarani [2001]
Lord Browne-Wilkinson felt it would be unconscionable for the donor to resile from the gift if had not died and so his children lost their claim to shares for charity even though did not clearly fall within one of the Milroy v Lord channels.

Question 17

Which case established the ‘every effort test’ and what is its effect?

Answer 17

Re Rose [1952]

If the settlor has made every effort to transfer the property, the transfer will be complete in equity.

Question 18

Which case demonstrates the limits to the every effort test and what were the facts of this case?

Answer 18

Re Fry [1946]
Shareholder needed treasury consent as well as delivery of stock transfer form and share certificate and so as not obtained the every effort test was not met.

Question 19

What is the principle from Pennington v Waine [2002]? What were the facts of the case?

Answer 19

CA held that ownership can pass in equity when it becomes unconscionable for it not to pass.
Here, paperwork was sorted but shares not registered but nephew was acting as shareholder by taking position of manager.

Question 20

What is the significance of Curtis v Pulbrook [2011]?

Answer 20

High Court judge interpreted the ruling of Pennington v Waine to require the recipient to rely on their detriment on the gift of shares. .
Helpful when using unconscionable argument of Pennington v Waine to be able to show detrimental reliance.

Question 21

What is the rule in Saunders v Vautier (1841)?

Answer 21

A beneficiary who is of full age, sound mind and entitled to the entire equitable interest can at any time direct the trustees to transfer the property to him and thereby put a premature end to the trust.
Rule also applies where more than one beneficiary, provided that meets all requirements and the beneficiaries act unanimously.

Question 22

What did the case of Mascall v Mascall (1984) hold in relation to the every effort test?

Answer 22

Father delivered executed land transfer form and land certificate. Following an argument and before registration father sought to resile from transaction but every effort rule was applied and held to be too late to pull out.

Question 23

What does M. Haliwell (2003) contend about the ruling in Pennington v Waine [2002]?

Answer 23

Gives courts unfettered discretion sat to whether a voluntary gift or trust should take effect. Argues that took Lord Browne Wilkinson’s ‘equity will not strive officiously to defeat a gift’ in Choithram out of context.

Question 24

What does J. Garton (2003) argue in relation to the Pennington v Waine [2002] decision?

Answer 24

Recasts Re Rose in theoretically sound grounds by focussing on conscience of transferor rather than the extent to which the formalities have been completed. Argues that a broad attitude to unconscionability resolves many of the practical problems with Re Rose.