The first part of this paper reviews and evaluates the change of the scope of the maxim that equity will not assist a volunteer and the second part looks at the recent shift in objectives underlying the maxim. The author will argue that the recent changes to the maxim are not underpinned by clear and rational objective which would unify the approach of the courts when considering whether to perfect an imperfect gift or not.
The law regulating the constitution of trusts and gifts is governed by two equitable maxims which form two sides of the same coin: firstly, if the settlor has failed to constitute a trust, equity will not do so for him with the reference to the equitable maxim that equity will not perfect an imperfect gift; secondly, the would-be beneficiaries under incompletely constituted trust have no rights unless they have provided consideration which is in accordance with another equitable maxim that equity will not assist a volunteer. Since the judgement in „Milroy v Lord“ and „Rose v Inland Revenue Corms“ the area of law was „tolerably clear“ until the recent developments in „T. Choithram International S v Pagarani“ and in „Pennington v Waine“, which promoted generous interpretation of the above mentioned maxims.
Table of Contents
1 Introduction
2 Scope of the rule “equity will not assist a volunteer”
3 Unconscionability as the new main policy objective?
4 Conclusions
Research Objectives and Key Topics
This paper examines the evolution of the equitable maxim that "equity will not assist a volunteer" in the context of trust and gift constitution. It specifically explores whether recent judicial shifts towards the concept of "unconscionability" provide a clear and rational framework for determining when a court should perfect an otherwise imperfect gift or trust.
- The historical application of the "equity will not assist a volunteer" rule.
- The impact of landmark cases like Milroy v Lord and Re Rose on legal certainty.
- The widening scope of equitable intervention in T. Choithram International SA v Pagarani and Pennington v Waine.
- The role of "unconscionability" as a potential, yet debated, policy objective in modern equity.
- The tension between judicial flexibility and the necessity for objective legal criteria.
Excerpt from the Work
3 Unconscionability as the new main policy objective?
The rule in Milroy v Lord as amended by Re Rose is underlined by the fundamental principle of justice that an owner cannot be deprived of the ownership of his property unless he disposes of it by a legally recognized mode of disposition. Even if the owner takes serious steps towards disposition, he should have the right to change his mind up until the moment at which he actually transfers everything that the transferee needs to perfect his title. Furthermore, the justification that failed donative intention will not be construed as a declaration of trust arises from the difference between donors and trustees. While the donor gets rid of all responsibility connected with the transferred property, the trustee imposes on himself with the declaration of trust onerous fiduciary duties over the transferred property. Thus if a trust would be imposed on a donor to perfect an imperfect gift he would be subject to much greater responsibility that he anticipated. In addition, a gift and a trust as a sophisticated form of gift are economically inefficient and inherently unfair transaction as the donee or trustee gets something for nothing. Considering the seriousness and irrevocability of such a transaction its perfection cannot be assumed only out of the donor’s intention, but it must be evident from acts of the donor. Furthermore, the judgements in Milroy v Lord and Re Rose strengthen legal certainty as they provide fixed point perfection for transfer of the beneficial interest.
Summary of Chapters
1 Introduction: This chapter outlines the dual equitable maxims governing trusts and gifts, setting the stage for an analysis of how recent case law has challenged traditional interpretations.
2 Scope of the rule “equity will not assist a volunteer”: This section evaluates the rigid historical precedents for voluntary settlements and the subsequent judicial attempts to modify these rules in complex cases.
3 Unconscionability as the new main policy objective?: This chapter critically assesses whether the emerging focus on unconscionability successfully balances donative intent with the need for legal certainty.
4 Conclusions: The final chapter summarizes the findings, arguing that the recent judicial reliance on unconscionability lacks a unifying rational objective and risks creating excessive judicial discretion.
Keywords
Equity, Trusts, Gifts, Volunteer, Unconscionability, Milroy v Lord, Re Rose, Pennington v Waine, Choithram, Property Law, Donor, Donative Intention, Fiduciary Duties, Legal Certainty, Equitable Maxims.
Frequently Asked Questions
What is the core subject of this assignment?
The assignment explores the legal principles surrounding the constitution of trusts and gifts, specifically focusing on the equitable maxim that "equity will not assist a volunteer" and its evolving interpretation by the courts.
What are the primary themes discussed?
The main themes include the requirements for a valid transfer of property, the distinction between donors and trustees, the preservation of legal certainty, and the rising influence of "unconscionability" in judicial decision-making.
What is the main research objective?
The objective is to evaluate whether recent developments in equity, which favor a more generous interpretation of gift perfection, are based on a clear and rational policy framework.
Which legal methodology is employed in the work?
The author employs a doctrinal legal analysis, reviewing landmark case law (e.g., Milroy v Lord, Re Rose, Pennington v Waine) and academic commentary to contrast traditional "orthodox" interpretations with recent "flexible" judicial approaches.
What does the main body cover?
The main body examines the historical scope of the "volunteer" rule, the impact of recent case law, and the theoretical debate regarding whether "unconscionability" provides a sufficient basis for court intervention.
Which keywords characterize this work?
Key terms include Equity, Trusts, Gifts, Unconscionability, Legal Certainty, and the relevant foundational cases that shape current property transfer law.
How does the case of Pennington v Waine challenge previous rulings?
The author argues that Pennington v Waine diverges from the established rule in Re Rose by upholding a gift despite the donor failing to do everything within his power to transfer the property, relying instead on the perceived unconscionability of the donor changing his mind.
Why does the author argue that "unconscionability" is problematic as a policy objective?
The author contends that because there is no comprehensive list of factors to assess unconscionability, the test lacks objectivity and potentially subjects property law to unfettered judicial discretion rather than fixed legal criteria.
- Arbeit zitieren
- Lucie Novotna Krtousova (Autor:in), 2012, Equity will not perfect an imperfect gift. A review and an evaluation, München, GRIN Verlag, https://www.grin.com/document/358293
