Formalities - cases Flashcards
ITG - Milroy v Lord
Main point = equity will not perfect an imperfect gift / imply a trust just bcs intended gift has not been completed
Summary : X purported to assign shares to L, to be held on trust for benefit of M, failed to comply w/ formality requirement for the transfer – for remainder of X’s life, dividends remitted to M (alternatively through X and L)
=> CA held that no valid trust created : neither in M bcs no valid transfer, nor in X bcs clearly not his intention
ITG - Choitram v Pagarani
S (terminally ill) purported to create a trust (‘the foundation), appointed himself and others as trustees, orally (repeatedly and before witnesses) stated that he have all his wealth to the foundation but didn’t comply w/ formality for transfer during lifetime
=> PC found that C had successfully vested assets into himself as trustee
ITG - Strong v Bird
Main point = fortuitous vesting : where intended donee is appointed as donor’s executor, and donor had intention to gift at the time of death, imperfect gift can be perfected
Summary: B borrowed money from stepmother, who was tenant in his house => ag that debt should be discharged by deduction from rent payments – after a while stepmother insisted on paying full rent again (despite debt not being discharged) and did so until her death, issue = whether extra money = gift to B (who was appointed sole executor of her estate)
=> CA held that the debt was released and claims in equity defeated by S’s intention to gift : B showed continuing intention to give + “there being a legal act which transferred ownership or released the obligation […] the transaction is perfected”
ITG - Dillwyn v Llwellyn
Main point = proprietary estoppel can perfect an imperfect gift
Summary : father indicated (by memorandum) that he wanted to give land to his son, but didn’t include the land in his will – in reliance on the memorandum, son had built house on the land
=> court held that son was entitled to the land – equity would not usually assist a volunteer but here son had relied on memorandum so transaction perfected by PE
ITG - Re Rose
Main point = the rule in Re Rose : where transferor has done everything in his power to transfer property (as a gift), equity will imply a (constructive ?) trust to give effect to the transfer (until it can be completed at law)
ITG - Pennington v Waine
Main point: even where transferor has not done everything in his power to complete the gift, equity may imply a CT where it would be unconscionable for him to recall the gift
/!\ criticised
ITG Zeital v Kaye
Main point : retreat back towards rule in Re Rose but not Pennington: trust will only be implied to perfect an imperfect gift where donor has done everything in his power to carry out the transfer (Pennington distinguished)
ITG - Curtis v Pullbrook
Main point : equity will perfect an imperfect gift where there was detrimental reliance by the donee (which was the case in Pennington v Waine : donee had agreed to become director bcs thought he had received gift of qualifying shares in it)
Summary : D trying to ag he had given a bunch of shares to his wife & daughter to avoid them being subj of a court order, but didn’t complete share transfer forms or hand over certificates => HC refused to perfect the gift
ITG - King v Dubrey
Main point : requirements for donatio mortis causa : bequest must be made (i) in contemplation of imminent death, (ii) conditional on death and (iii) donor must give donee ‘dominion’ over the property (phys possession, means of asserting it or docs evidencing entitlement)
Situation : C’s aunt’s health deteriorating, handed C deeds to her house (which was pt of her will, not to C), saying ‘this will be yours when I go’
=> CA held that no donatio mortis causa here bcs C only contemplating natural death (??) + aunt attempted (and failed) to make new will = evidence of testamentary intent ≠ gift conditional on death (???)
s53(1)(c) - Grey v IRC
Main point: direction to T to hold on trust for another = disposition of an EI for purpose of s53(1)(c)
Summary: Ts held shares on (bare) trust for H, who orally directed Ts to hold on trust for his grandchildren – written docs later executed, attracted stamp duty, dispute abt meaning of ‘disposition’
=> HL held that direction to T to hold on trust for another = a disposition within s53(1)(c) : must be made in writing to be valid / effective, Viscount Simonds giving word ‘disposition’ its “natural meaning”
=> Criticism (Georgiou) : right H had (under bare trust) ≠ right grandchildren get (involves duties of mg not owed to H) so not a ‘subsisting’ EI
s53(1)(c) - Oughtred v IRC
= minority view (Lord Radcliff) : constructive trust arising form oral ag not a ‘disposition’ for purpose of s53(1)(c) = triggers it but can get around bcs s53(2) (upheld in Neville v Wilson)
Summary: Mrs O owned shares in a company + beneficially entitled to more shares for life (then for her son absolutely) => ag w/ son to swap her shares for his reversionary interest in the trust shares (to avoid death duties) – later executed deed of release to effect ag – issue = when did EI pass / did oral ag create CT (so that no ‘disposition’)
=> HL (maj) held that s53(1)(b) applied (to / despite interest under CT) so EI passed only w/ writing = attracted stamp duty
=> Min of HL : son’s EI passed w/ the oral ag bcs gave rise to a CT = s53(2) exception to writing requirement (so no stamp duty?)
s53(1)(c) - Re Paradise Motor Co
Main point: disclaimer of an interest not a ‘disposition’ within meaning of s53(1)(c)
s53(1)(c) - Neville v Wilson
where oral ag abt disposal of equitable interest gives rise to a CT : s53(1)(c) triggered but requirement of writing removed by s53(2) => ag effective
= upholding minority in Oughtred
s53(1)(c) - Nelson v Greening & Sykes
Main point: creation of an express sub-trust not a disposition of a ‘subsisting’ EI under s53(1)(c)
=> same as creating new trust, B2’s rights are engrafted on B1’s, B1’s rights don’t technically pass to B2, what B2 gets = smth different
s53(1)(c) - Vandervell v IRC
Main point: direction (by B absolutely entitled) to T to transfer to X outright is not a disposition under s53(1)(c)
Summary: bank held shares on trust for V. V instructed bank to transfer shares to RCS, also agreed w/ RCS that they would grant VT (trustee company mg trusts for V’s children) option to repurchased once had got a certain amount of money out of the dividends, after 2y RCS granted option to repurchase and VT exercised it
=> HL held :
- V’s instruction to the bank to transfer to RCS = not a disposition under s53(1)(c)
- option to repurchase held by VT on (A)RT for V (bcs had failed to dispose of BI – so taxable)
