A Gift as the Tansfer of Legal Property

1949 Words4 Pages

A gift is the transfer of legal property such as land, a house or money. Since there is no consideration for the gift, a gift is not regarded a contract and as such a gift will fail if the person giving the gift does not take the necessary steps to divest himself from the gift. Where a gift fails it reverts back to the person intending to make the gift or to the estate of that person where the gift is testamentary. A completely constituted trust implies that the trust property is conferred to the trustees and the trust is binding on the donor who cannot revoke the trust. When the trust property is not properly vested the trust is considered incompletely constituted and it is void as equity will not force the donor to complete the trust. The principles of constitution of trusts are derived from the case of Milroy v Lord (1862 where turner L.J. stated that the complete constitution of a trust requires the actual transfer of property from the person making the gift to the beneficiary, a transfer of the intended gift to the trustees to be held in trust for the beneficiaries or the self-declaration of a trustee. The principle in this case is that a gift can only be enforced in equity if it satisfies one of the three requirements. Where the trust does not meet any of the three requirements the trust is considered an imperfect on incompletely constitutes trust. If the donor fails to complete all the formalities required by common law, then equity will not assist the intended beneficiary and thus the gift will be imperfect. The equitable maxim applicable is that equity will not complete an imperfect gift. Equity will not assist a volunteer The common rule in equity is that “equity cannot perfect an imperfect gift and this was demo... ... middle of paper ... ...am R, Incompletely constituted trusts: Covenants to settle property (Equity & Trusts: Text, Cases, and Materials 2013). Bray J, Key Cases: Equity & Trusts (Routledge2013) Bray J, A Student's Guide to Equity and Trusts (Cambridge University Press 2012) Ramjohn M, Equity and Trusts 2009-2010 (Taylor & Francis 2009) Hudson A, Understanding equity and trusts (Routledge 2012) Ford E, ‘Incomplete Gifts in Equity’ (2002) 13 King's Law Journal 222 Finn P, ‘Common law divergences’ (2013) 37Melbourne University Law Review 509 Smith L, ‘Common Law and Equity’ (2011) 68 Washington & Lee Law Review Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353 Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14

Open Document