Equity does not assist a volunteer PDF

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EQUITY – EXCEPTIONS VOLUNTEER.

TO

NOT

ASSISTING

A

Equity will not assist a volunteer. Volunteer= someone who is not giving consideration. Equity however recognises additional type of consideration known as marriage consideration. Any kind of property that can be owned – can be held on trust. This gives rise to a huge number of ways to structure a transaction. If any type of property can be held on trust what about a contract? Rights under a contract could be held on trust. First exception: Fletcher v Fletcher 1844- a chose in action is a form of property and can be the subject matter of a trust. A covenant (a promise contained in a deed to transfer property in the future to a trust) is a chose in action – therefore it (the covenant) can itself be the subject matter of the trust. Must show on the facts if there is intention that the trustees wanted to hold the benefit of the covenant on trust for the beneficiaries. In this case Jacob stated that the promise is fully operative as there was consideration given and there was intention from his father that the promise was to be enforceable. He claimed the rights under the promise itself and not the money. Therefore, it can be possible to have a fully enforceable trust of a promise. Don king Productions Inc v Warren – courts reiterated that there could be a trust of a chose in action, like the benefit of a covenant. Held that the benefit of the agreement could be subject matter of a trust regardless that the agreement prohibited assignment. Followed Fletcher v Fletcher. To show exception that contract is a subject matter there must be clear intention. Swift v Dairywise Farms 2000 – can a milk quota be itself a subject of a trust? Held yes it can be. Bluestone Chemicals Ltd – license held to be on trust. Second exception: Contracts (Rights of third parties) act 1999 - Privity of contract - Note the requirements necessary to come within the act - Reading the contract as a whole, was it intended by the parties that the third party should be able to sue – have the benefit of the contract? - Is the third part identifiable Where it is the intention for A and B to create a contract that benefits C, C has the right to enforce the contract. Provided that C is clearly identifiable in the contract and provided that it is the intention that C should have a right to enforce the contract even though he is not a party to the contract, it is for his benefit.

Third exception: The rule in strong v Bird: -

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An intervivos gift or gift on trust fails because of non-compliance with some legal formality. Eg: declaring a trust but not making it in writing. To create a trust, legal title must be vested in the trustee for a trust to be created by transfer. What if legal title isn’t vested in the trustee because the transfer is incomplete or ineffective due to non-compliance with formalities but the would be trustee gets legal title in another way by receiving it as the will of the would be transferor. This is a promise showing intent, subject matter and legal ownership going to the person intended for it to go to=constitution. That means the beneficiary for who the intended transferee holds has a completely constituted trust and can enforce it. The person to whom that gift was given becomes the donors executive, at the moment of the donors death, the donee becomes the owner of everything. A donor/settlor appoints a donee as his or her executor under his will. This is intervivos (during life). The done/trustee automatically receives the legal estate The vesting of the legal estate is circumstantial/fortuitous comes about as a result not of transfer as intended by the settlor but through the will. But this completes the constitution of the gift on trust because the legal title to the property intended to be transferred is vested in the executor/intended trustee. Inter vivos gift (or release of debt) fails for lack of formality compliance Done appointed as executor Coincidence of legal ownership as trustee/executor and legal ownership as beneficiary operates to perfect the gift.

Strong v Bird facts: son in law and mother in law shared same home. Mother in law paid quarterly rent. Son in law borrowed £1100 and she wanted to pay lower rent for giving him money that was the agreement. Son in law was struggling so she was paying full rent to help him she then dies. The executor becomes the son in law. Under the will her assets are left to the next of kin. Next of kin states that she is still owned from son in law. Son in law states that she agreed to forgive the debt as he was struggling. Him becoming the executor for her means that he is her in the law. He received the rights to forgive the debt. Legal ownership of the right to forgive the debt had transferred to son in law. Re Rallis Will Trust: - Property left by R’s will on trust for his wife, for life and then his daughter H and I on remainder. - H’s marriage settlement, the terms of it leaves her expected remainder under R’s will to I’s children in the event that she doesn’t have children herself. - H dies without children. Her expected legacy channel to her nieces and nephews

Wife dies I’s children are therefore volunteers But T who is I’s husband is trustee of H’s settlement as well as trustee of R’s will so the trust is constituted. This is not on the exam. -

Common principle between both cases is that legal ownership gets to where it needs to get in a different way than intended but it gets there. Day V Royal College of Music: A famous composure writes will to give his wealth to royal college of music but towards end of his life he lives with Mr. Day who looks after him. He promises Mr. Day a manuscript. He then dies and Mr. Day becomes the executor. No physical deliver. Deed not executed. But intended recipient is appointed executor therefore he gets legal title for the very thing intended for him to receive. Thus, the gift is ‘perfected’

Donata Mortis Causa: - Aka death bed gift - Someone has written a will, but he reconsiders the matter at the last moment on his death bed during intervivos. And decides to give certain things away only orally. - Death bed gifts require 3 things to be approved: 1. Needs to be shown that the gift is made in contemplation of death 2. Gift is made in circumstances that indicate that the soon to be deceased was only making the gift conditionally ie. If he lived he would keep the assets 3. Proof that the subject matter of the DMC has to have been delivered to the intended recipient. Authorities: DMC requirements were laid down in Cain v Moon and recently in King v Chiltern Dog Rescue [2015] DMC – 1 CONTEMPLATION OF DEATH: - Giver of the gift needs to be motivated by an impending sense that he is going to die in the near future for a specific reason - King v Chiltern Dog Rescue. - Does not matter if dies of a different cause or sooner Wilkes v Arlington. DMC - 2 CONDITIONAL ON DEATH: - Gift remains revocable - Clear in its terms that’s its conditional - Implied from the circumstances - E.g. “If I die, I want you to have my gold wrist watch”

DMC – 3 DELIVERY: - Dominion and control over the subject matter has to have been surrendered by the giver - Or symbolic dominion and control of the subject matter - Can be given before intention to give but ineffective if donor has means of access or dual access. DMC types of property: Stocks and shares? Ward v Turner [1752] stocks in railways and shares in building society cannot be DMC. Staniland v Willott [1852 PLC public limited company, they can be subject matter of DMC. But in re Beaumont 1902. Cheque could not. DMC land: Sen v Headley – a house (Unregistered land). he was a widower in a relationship with a house keeper, on his death bed he wanted the house keeper to have the house, she already had the keys, he also gave her keys to safe with deeds to house. He dies and his family wants the house. But court said theres a DMC for the unreg house. Might not be possible for registered land. DMC item of personal property: A car - Woodard v Woodard 1995 can be DMC if given the keys alone. No need for a log book. Rule of Re Rose: Done all can do to accomplish the transfer. Is there also an exception to the rule that equity will not assist a volunteer? Use of the correct form but transaction incomplete ‘imperfect transaction’: - COMPARE - Re Rose - Re Fry - Had the transferor done everything that could be done to transfer the property? - Trustees of Jan Yngve v Greyerz - bankruptcy...