Formalities - rev notes Flashcards
ITG - Milroy v Lord - 3 ways for A to benefit B with property
- A makes a gift to B = transfers both legal title and EI to B
- A transfers to C to hold on trust for B = C gets legal title, B gets EI
- A declares he holds on trust for B = A keeps legal title, B gets EI
ITG - Starting point
= Milroy v Lord : equity will not (generally) intervene to assist a volunteer / imply a trust to perfect an imperfect gift,
ITG - exceptions : equity will sometimes intervene to perfect an imperfect transfer (5)
(1) fortuitous vesting
(2) donatio mortis causa
(3) Re Rose
(4) Proprietary Estoppel
(5) Unconscionability
ITG - Fortuitous vesting (1)
If A promises to transfer property (or that she will not enforce repayment of a debt) to B, but fails to effect the transfer in her lifetime, gift fails, bcs equity will not assist a volunteer = Milroy v Lord
but if B receives the property in another capacity (eg as executor of A’s estate), the courts consider the transfer to be perfected = Strong v Bird (1874)
ITG - Fortuitous vesting (2) - requirements
Set out in Strong v Bird :
- clear intention to make inter-vivos gift to transferee, unchanged until death
- intended transferee obtains legal ownership by appointment as executor or personal representative
ITG - donatio mortis causa
= deathbed request superseding a will (DMC)
Requirements for DMC reaffirmed by CA in *King v Dubery** (2015) :
- bequest must be made in contemplation of imminent death (for a specific reason)
- bequest must be conditional on death
- A must deliver ‘dominion’ of the property to B = give B physical possession or means of accessing it or documents evidencing entitlement to possession (eg deeds)
ITG - Transferor did everything in his power*
= Re Rose : where A has done everything he could to perfect transfer to B, and the reason that the gift has failed is beyond B’s control, equity considers done that which ought to be done = will perfect the gift by implying a CT in favour of B
ITG - Estoppel (1) - 4 elements
1) A representation (as to facts or law, claimed to give rise to the estoppel)
2) Reliance by C on the representation
3) Detriment to C
4) unconscionability in D’s behaviour
ITG - Estoppel (2) - authorities
Three main elements in Thorner v Major : representation, reliance and detriment
+ Unconscionability = Cobbes v Yeowman’s Row : ‘if the other elements are present but the result does not shock the conscience of the court, the analysis must be looked at again’ (Lord Walker)
ITG - Estoppel (3) - the remedy
Remedy / how to ‘satisfy the equity’ is in the hands of the court = will not always be full performance
=> holding promisor to his promise = starting point, but if promisor can show that is disproportionate, court can give smth ≠ = Lord Briggs in Guest v Guest
s53(1)(c) - the rule
disposition of a subsisting equitable interest must be in signed writing (or else is void)
s53(1)(c) - the statute
LPA 1925, s53(1)(c) : “A disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.”
/!\ subject to s53(2) : “This section does not affect the creation or operation of resulting, implied or constructive trusts.”
s53(1)(c) - 1st creation of a trust
Arden LJ in Kinane v Mackie Konteh, relying on Lord BW in Westdeutsche (no EI in absolute O)
=> Engraftments view : creation of trust not a ‘disposition’ of a ‘subsisting’ EI bcs no separate equitable interest in property until the legal and equitable estates have been divided
= EI didn’t exist until creation so not subsisting
/!\ ≠ on division of rights view : creation would be disposition so all trusts would have to be created in writing – doesn’t make sense
s53(1)(c) - creation of express sub-trust
doesn’t apply : creating sub trust same as creating new trust, B2’s rights are engrafted on B1’s, B1’s rights don’t technically pass to B2 (although in practice B1 sometimes ignored) so what B2 gets is smth new = Nelson v Greening & Sky
s53(1)(c) - direction to T to hold on trust for X
generally, is a disposition (‘natural meaning’) = Grey v IRC
s53(1)(c) - direction to T to transfer outright
not a disposition = Vandervell v IRC, per Lord Upjohn: when B has whole BO, such that can direct T as to LO as well as BO, outside mischief statute of fraud (and successor LPA) aims to prevent
/!\ questionable whether really outside mischief
s53(1)(c) - direction to T transfer to X on trust for Y
trust = somewhere btw Grey and Vandervell – no authority yet
=> Plausible that reasoning in Vandervell wide enough to encompass this type of case: Lord Upjohn seems to treat “giv[ing] directions to his bare trustee with regard to the legal […] estate” as a sufficient condition for the disapplication of s.53(1)(c)
s53(1)(c) - disclaimer
= refusing to be a B : refusing an EI not a ‘disposition’ of that EI = Re Paradise Motor Co, per Danckwerts LJ
s53(1)(b) - the rule
** = signed writing is required to evidence the DOT**
s53(1)(b) - the statute
“A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will”
/!\ subj to s53(2) exception = RTs, ITs & CTs
s53(1)(b) - abt evidence ?
about evidence rather than enforceability / validity = Ong v Ping
s53(1)(b) - Ong v Ping
- 3P purchases title to a house, intending to hold it on trust for one of her sons and his children, executes a trust deed to that effect but forgets to specify what she is holding on trust
- 2 signed letters by 3P that actually refer to the property, w/ the address – letter purporting to cancel the trust – Q = was there a trust ?
- Court held that letter to cancel the trust was sufficient to cancel it => must mean that there was a trust before that, bcs letter can’t cancel it if not existing yet => letter only evidence of a prior oral understanding
s53(1)(b) - Rochefoucauld v Boustead - the decision
Situation:
* C held titles to coffee estates, mortgaged them to Dutch company = transferred titles in exchange for equitable right to repurchase upon repaying debt
* C arranged for manager = D to repurchase the title (owed money to him instead) – C wanted to conceal her interest in the land bcs divorce proceedings, D meant to hold on trust for her but no writing
* D immediately re-mortgaged title
* Years later, C asked D to account as T – but didn’t have signed writing to prove the trust
Lindley LJ (CA) :
* Signed writing not needed to create a trust, only to prove its existence : rule in s53(1)(b) (then s7 of the Statute of Frauds 1677) is a rule of evidence
* That evidentiary rule cannot be relied on to commit fraud: party trying to deny the existence of a trust which in fact exists will not be allowed to do so bcs whole point of the statute = prevent frauds, not facilitate them
=> s7 disapplied bcs trying to use it to commit fraud, therefore there was a trust recognised by the court
s53(1)(b) - Rochefoucauld v Boustead - what kind of trust ? (1a) Express
= Lindley LJ in Rochefoucauld itself an express trust, declared orally but still enforceable despite lack of formality bcs T was trying to use lack of formality to defraud B
