Gifts Flashcards
Reasons For Formalities
Evidence - Writing or witness statements, what matters is the probative value of the requirement
Caution - acts as a check for the donor against rash or hasty action forcing the donor to think about what they are doing
Channelling - bringing all this together for everyone to see and understand
Types of Property
Real property - Land, freehold and leasehold
Personal Property - Property other that land
Tangible Property/ Chattels/ Choses in Possession - physical personal property
Intangible Property/ Choses in Action - Personal property without physical form
Statutory Rules for Transferring Property - Land
- To transfer a legal interest a deed is needed and registration at land registration for registered land
- Deed needs to be in writing, signed and witnessed
- Law of property Act 1925, ss 52, 53, 54
- Law Registration Act 2002
- Law of Property (Miscellaneous Provisions) Act 1989, ss 1, 2 - Contract for the sale of land needs to be in signed and writing
Statutory Rules for Transferring Property - Wills
- Formal document that needs to be signed by the testator and witnessed
- Wills Act 1837, s 9
Statutory Rules for Transferring Property - Miscellaneous
- Requirement of writing for the transfer of a debt. Debt can be bought and sold.
- Debt: Law of Property Act 1925, s 136
- Shares: Stock Transfer Act 1963
- Shares have formalities for the transfer
Tangible Personal Property (Choses in possession) (How to make one)
- Deed of gift - Law of Property (Miscellaneous Provisions) Act 1989, s 1
- Or, less formally - Delivery (in a legally recognised form), Intention to give (by donor), Acceptance (by donee)
- Contract of sale? - Not a gift
Why Intention and Delivery? -Intention to make an immediate gift
- It is needed to distinguish from loan, pledge, trust, etc
- Delivery is needed for policy reasons. Easier to prove everything with receipt.
- Re Ridgway - “as there own” – immediate intention to give. Inference from words and conduct is that this was not an immediate give it was a future gift. no delivery.
- Day v Royal College of Music – “etcetera” include the manuscripts because of objective interpretation and reasonable person interpret the situation
Actual Delivery
- Physically handing over the object itself
- Re Cole
- Cochrane v Moore
Symbolic Delivery
- Property is physically devisable.
- Delivering a part of the property that symbolises the gift
- Lock v Heath
- Rawlinson v Mort (1905) 119 LT 263, 21 TLR 774 (KB)
Constructive Delivery
- No physical delivery
- Wrightson v McArthur and Hutchinson – pledge not a gift.
- Thomas v Times Book Company
Acceptance presumed
Donees acceptance to the gift is not required to be expressed, though they can actively express refusal which prevents title passing
Strong v Bird
- Strong v Bird - debt owed by the doner to the donee
- Exception to the requirement of delivery only, intention is still needed.
- The doner dies and the donee is the executer of the estate
- Applied to bonds and land, too (Re Stewart & Re James)
- And applies to administrators as well as executors (Re Gonin)
The Rule in Re Rose
- The ‘last act’ doctrine
- the donner has done everything in their power to complete the transfer even if the rest of the procedure or formalities had not been followed equity would ‘perfect an imperfect gift and the transfer of property will be complete in equity even if not at common law’
Re Fry
- died before consent was obtained.
- There was no transfer of title because the problem was the treasury might not have given that consent
- compare to re rose
Mascall v Mascall
Includes registered land
Choithram v Pagarani
- died before the assets could be legally transferred
- ‘Although equity will not aid a volunteer, it will not strive officiously to defeat a gift … it would be unconscionable and contrary to the principles of equity to allow such a donor to resile from his gift.’
- “unconscionable” wide discretion, not very clear
Pennington v Waine
- It cannot be necessary for the donor to do absolutely everything
- Equity (via its constructive trust) is concerned with exceptions to formalities
- A ‘benevolent construction’ of words of gift are possible
- Stretching the rule even more
- ‘ would [it] be unconscionable, in the eyes of equity, vis-a-vis the donee to [change her mind?]’
- ‘There can be no comprehensive list of factors which makes it unconscionable… it must depend on the court’s evaluation of all the relevant considerations.’
- A ‘multifactorial approach’ Weighing the factors; no one factor conclusive
Zeital v Kaye
- Fell back on Re Rose
- Pennigton had ‘Special facts’ and didn’t consider unconscionability
Curtis v Pulbrook
- 3 ways of perfecting an imperfect gift in equity
1. Last act, per Re Rose [1952] Ch 499 (CA);
2. Donee has relied detrimentally on gift; or
3. Benevolent construction of words
JStephenson - Nosnehpetsj Ltd v Watersheds Capital Partners Ltd
- Stock transfer form left on file again.
- Judge: gift perfected, as in Pennington
Khan v Mahmood
- Had been executed (even if defective)
- Donor intended to give to donee
- Donor had paid the £400 stamp duty
- Donor in trouble due to benefit fraud and expected to be given his interest back
- Failure to send form not part of a ‘deliberate’ scheme
Donatio Mortis Causa
- A gift in contemplation of death
- A way of passing property upon death where the transfer of formalities, even as a gift between living people, when those formalities have not been complied with
- DMCs are revocable at any time
- The gift must have been made in contemplation (if not expectation) of death
Cain v Moon [1896]
- there are 3 requirements
1. The gift must have been made in contemplation (if not expectation of death);
2. The subject matter must have been delivered to the donee with the intention of parting with dominion over it; and
3. Th e gift must be conditional on death and revocable upon recovery.
Thompson v Mechan
- Objective good reason required
- donner subjectively feared air travel but the ordinary person wouldn’t. not contemplating the genuine possibility of death. The risk has to be objectively real
Wilkes v Allington
Not necessary for death to occur in manner contemplated
King v Dubrey
- Not enough simply to be old and expect to die of old age
- not sufficient because the gift can revert back to the donner if they survive the event (no one can survive of dying of old age).
- deteriorating health was not a good reason
Woodard v Woodard
- The subject matter must have been delivered to the donee with the intention of parting with dominion over it
- Handing over dominion is handing over control
Birch v Treasury Solicitor
- Bank deposit book for money in account
- Unregistered land could be recoverable for a DMC
- DMC applies to personal and real property
Sen v Headley
- Keys for strongbox containing title deeds to land
‘Manual’ revocation
- Jones v Selby (1710) Prec Ch 300, 24 ER 143
- Bunn v Markham (1816) 7 Taunt 224, 129 ER 90
DMC (pt. 2)
- The gift must be conditional on death and revocable upon recovery
- Matter of intention and interpreting the words and circumstances
- Can interpret using circumstances
- Re Lillingston [1952] 2 All ER 184 (Ch) – jewellery. Interpret the words in light of the surrounding circumstances
