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scenario. If so, then the intended beneficiary will be able to recover their
property in equity. This will be the overture of the essay if the trusts
have not been constituted then the exceptions to the rule in Milroy will be
discussed and tested to determine if Charles and the other intended
beneficiaries may rely on them. It will finalise with a summary of the facts
and the approach Charles should take regarding each property.
that Strong only applies to the former 9, the case is able to remedy both
eventualities.
When a testator appoints his debtor as executor, he is no longer liable at
law as there is no equity against him to take the property away 10.
Supplementary, when a gift is incomplete, if the intended recipient is
named executor then its deemed completed as long as an inter vivos gift
is intended, opposed to a testamentary disposition otherwise the intention
would be ineffective as failing to comply with formalities of section nine of
the Wills Act
11
14
. There are two categories of gift inter vivos and donatio mortis
West.
13 [2014] Ch. 211.
14William Ferguson v. The Commissioner for Her Majestys Revenue & Customs
will only take effect after his death. As Lord Marchmain is stricken with a
terminal illness, it will be argued that Lord Marchmain intended a DMC
gift.
Authorities generally dictate three requirements for a valid DMC although
they have varied over time. The original formulation lies in Cain v. Moon15,
although later formulations have arisen, requiring modification of the
original formula. The accustomed approach follows that DMC must have
been made in contemplation and conditional upon the donors death and
the delivery of the indicia of title16.
There is no requirement of the donor being in extremis, but with death
within the near future17. The justification lies in Hedges v. Hedges18;
when a man lies in extremity or being surprizes with sickness 19, he
would not have an opportunity to make his will. This is mirrored by
Marchmain seeing death in the near future due to his terminal illness. It is
also conditional that no vesting occurs until the death of the donor 20. This
15 [1896] 2 Q.B. 283, the original formulation was provided by Lord Russell of
Killowen who gave the criteria of; (1) gift made in contemplation of death (2)
delivery to the donee (3)made under circumstances as shew that the thing is to
revert to the donor should he recover.
16 A non-exhaustive list of recent cases that have followed the outlined criteria
includes King v. Dubrey [2014] EWCH 2083 (Ch), Valle v. Birchwood [2014] Ch.
271 & Re Lillington (Deceased) [1952] 2 All E.R. 184.
17 Re Cravens Estate (No. 1) [1937] Ch. 423 at 426 per Farwell, J.
18 (1708) 25 E.R. 9.
19 Ibid, per Lord Cowper.
allows the transaction to be revocable at any time before the death of the
testator.
Finally, there must be a passing of dominion 21; as it is money in a building
society it would be classed as intangible property thus the transfer of
indicia of title suffices22. Evershed MR in Birch v. Treasury Solicitor
reiterated that symbolic delivery is not enough; there must be transfer of
the subject matter or something [similar]23. It was held in Re Weston
24
that a savings book could be a subject matter with proper delivery 25,
however the Birch v. Treasury Solicitor allows some accounts to be valid
whilst others not. As the sort of account is not stated, it cannot be
determined if the DMC is valid. This fault is likely due to the laws flirtation
with DMC in addition to its inconsistency and absence of clearly
propounded principles26.
Headley [1991] Ch 425 & You can keep the keys, I wont be driving [the car]
anymore in Woodard v. Woodard [1995] 3 All E.R. 980.
21 Re Cole [1964] 1 Ch 175, CA.
22 Birch v. Treasury Solicitor [1951] Ch. 298.
23 Ibid, at 308 per Evershed MR.
24 [1902] 1 Ch. 680.
25 Ibid, at 685 per Bryne, J.
26 Samuels, A. 1966. Donatio mortis causa of a share certificate. Conv, 30(295),
p. 189.
equitable
interest
in
the
relevant
property
to
have
passed
30
31
; Mrs.
Art. 2(b).
28There are two cases under the name of Re Rose with slightly differing facts
however the ratio and principle remains the same; [1952] EWCA Civ 4; [1949] Ch 78.
29 Re Rose [1952] Ch. 499 at 509 per Evershed MR.
30 Ibid at 512 per Evershed MR.
31 [2002] EWCA Civ 227.
34
Kaye
37
where the case failed due to the donor not being the registered
38
shows that the court prefers to give effect to a deceased intentions rather
than have a trust over a particularly valuable properly lapse into residue.
Choithram, with Re Rose, displays willingness on the court to depart from
strict legal formalisms and, in that sense, is in line with the approach of
Lord Wilberforce in McPhail v. Doulton
40
41
concerning
44 45
48
47
and Curtis v.
that attempted to follow that route failed. This has brought the
BIBLIOGRAPHY
Birch v. Treasury Solicitor [1951] Ch. 298.
Birks, P., 2000. English Private Law, Vol l. 1 ed. Oxford: Oxford University Press.
Cain v. Moon [1896] 2 Q.B. 283.
Curtis v. Pulbrook [2011] 1 BCLC 638.
Day v. Royal College of Music [2014] Ch. 211.
Dingle v. Turner [1872] A.C. 601.
Garner, B. A., 2009. Black's Law Dictionary. 9th ed. St. Paul, MN: Thomson West.
Grimke, J. F., 1797. The duty of executors and administrators ... shewing also who
are entitled by law to be the administrators of an intestate person : with full and
clear directions to a man's relations how his estate will be distributed among them,
according to the laws.... 1st ed. New York: T. and J. Swords.
Hedges v. Hedges (1708) 25 E.R. 9.
Hopkins, J., 2001. Constitution of trusts - a novel point. Cambridge Law Journal,
60(3), pp. 483-486.
Hudson, A., 2014. Perfecting Imperfect Gifts. In: Equity and Trusts. Oxon: Routledge,
p. 447.
Jaconelli, J., 2006. Problems in the rule in Strong v Bird. Conveyancer and Property
Lawyer, Issue Sep/Oct.
Jones v. Lock (1865-66) L.R. 1 Ch. App. 25.
King v. Dubrey [2014] EWCH 2083 (Ch).
McPhail v. Doulton [1971] A.C. 424.
McGhee, J., 2002. Alls Fair ... The relationship between completely constituted gifts
and equity. Trusts and Estates Law Journal.
Milroy v. Lord (1862) 45 E.R. 1185.