Ascertain whether George has a right to the cottage, copyright, shares and money

However, there are two other avenues open to George. One is through the doctrine of Donatio Mortis Causa (DMC), the other through the rule established in Strong v Bird.

We are told that a month prior to her death Joanne had “discovered” she was dying. This raises the question whether the cottage could be considered as a donatio.  Through this doctrine Equity will act to compel a donors exectutors to perfect an imperfect transfer of title if the property was intended as a gift in light of ones impending death. However, for Equity to take this action certain three requirements, as set down in Cain v Moon, must be met with. Firstly “More is required than a mere recognition of the inevitability of death itself”. In this instance it seems clear that Joanne had a specific reason for believing her death was near, perhaps through a newly discovered disease, and this is sufficient to give rise to a donatio. However, it is more difficult to reconcile Joannes actions with the two remaining criteria. It is essential that 1)the property must be delivered to the donee and 2)that the gift is intended to take effect only upon the death of the donor. As for the former, obviously land can never be gift-wrapped and handed over and for this reason it was at one time questionable whether land could ever be the subject matter of a donatio. However Sen v Hedley illustrated how, where unregistered land was concerned, delivery of the “essential indicia of title”, in this case the title deeds, was sufficient to meet this requirement. The position is slightly less clear with respect to registered land but it has been suggested that delivery of the land certificate would suffice. Unfortunately we are not told of any transfer that could amount to handing over dominium or, more specifically, whether the cottage is registered or unregistered land. Lastly, with regards to when Joanne intended this transfer to be effected, we are told that Joanne calls Hugo and asks him to transfer the ownership of the cottage. There is no mention of when this should be done but it seems to suggest that Hugo should act immediately; making the transfer of property an intended inter vivos gift. This would mean that Georges claim to the cottage through the doctrine of DMC would fail on two out of three counts leaving him with only one potential avenue of claim; if he were to be declared as Joannes executor.

Although no indication is made as to who is appointed as executor of Joanne’s estate, if George was to be given this position it would give him recourse to pursue his claim to the cottage through the rule demonstrated by Strong v Bird. Like the mechanism of Donatio Mortis Causa this case illustrates another situation where Equity will assist in perfecting an imperfect title but again there are strict criteria to be complied with. In contrast to a donatio it must be clear that the donor intended to make an immediate inter vivos gift. As discussed above it seems apparent that Joanne did indeed intend to transfer the property to George immediately and only her lack of compliance with formalitites prevented an effective legal transfer. It is also key that this intention to give continued until the donors death. In Re Gonin a mother incorrectly believed that she could not leave her house to her illegitimate daughter and so wrote her a cheque as compensation. It was held that although there had been an intention to leave the daughter the house, the writing of the cheque was a clear manifestation that that wish had been revoked. In the case at hand we are told that Joanne subsequently sends a cheque to George but there is no additional evidence to suggest that this is intended to replace her gift of the house,more that it was to be an extra gift, and so it seems that this continual intention requirement is also met. The final requirement is that the property must be capable of enduring the death of the donor and the cottage clearly meets this condition. In light of the above it has been established that there was no effective transfer of legal title during Joanne’s life, and that the doctrine of DMC is not an available option. In spite of this George’s to the cottage hinges on factors about which we are not informed; if he is Joannes executor then he is entitled to the legal interest of the property, if not then the property will pass under her will.

Secondly, the copyrights and the shares. These are both forms of intangible property and as such are subject to different rules to land. Again the certainty requirements seem to be satisfied and Georges and Hugo’s entitlements hinge on whether the formalities were followed. With regards the copyright any assignment must be made in writing and signed by the assignor. We are told that Joanne wrote to Hugo detailing her wish that the copyright be transferred to himself on trust for George. This seems to fulfil the formalities set out in statute and therefore Hugo holds the legal interest on trust for George.

As for the shares, to make an effective inter vivos transfer of the legal title to George, Joanne would have to have completed a share transfer form then returned it to the company who register the new person as the shareholder. It is important to note that legally the transfer is not complete until this registration has taken place. However we are not told of Joanne completing any such transfer form, merely that she returned the share certificates themselves. This alone would be wholly ineffective at transferring the legal title to the shares.  Had a transfer form been completed and posted, but registration not implemented prior to Joannes death the rule demonstrated in Re Rose would apply and Equity would step in and view the transfer as complete from the date the form was submitted as long as Joanne had “done everything within her power” leaving the transfer dependant on only third party actions. The correct completion and posting of such a form would have ensured that George obtained an interest in the shares. It is also important to note that the mechanism of DMC would not apply in this instance as although shares are capable of being the subject of a DMC and Joanne transferred the indicia of title(in this case the share certificates) in contemplation of her death, she delivered them to the company and not to the intended donee. There is also the possible recourse to the rule in Strong v Bird as the requirements of intention and subject matter are met, but again this turns on whether George is appointed executor.

Finally is the cheque made payable to George himself and the note expressing the wish that George have the money after her death. On the surface it seems obvious that George should be entitled to £100,000 in line with his mothers wishes and had this been a cash payment or an instruction left in her will there would not be a problem. The issue arises with the form in which the gift was made; that of a cheque. A cheque is merely a “revocable order” issued to the bearers bank instructing the bank to pay the amount. In Re Beaumont it was decided that as such it became worthless upon the death of the account holder As discussed above both the doctrine of  DMC and the Strong v Bird exception rest on the ability of the property in question to endure after the death of the donor; following the Re Beaumont judgement this is clearly not the case. This leaves George with no claim to the money, whether appointed executor or not, and although apparently harsh was applied to the same effect in Re Gonin.

Common law remedies are not available to George in any of the above instances as they rely on the presence of covenants between at least two of the concerned parties and in this case no such covenants have been mentioned.

In conclusion, I believe George is certainly entitled to the beneficial interest of the copyright, and owing to his age could bring the trust to an end in accordance with his right under Saunders v Vautier. He also has no claim to the £100,000 sent to him by cheque. As for the cottage and the shares, it seems clear to me that Joanne was ineffective at transferring the legal title to these during her lifetime as she failed to comply with the requisite formalities. He is also unable to pursue the DMC route for the reasons outlined above. He is, however, possibly entitled to the property if he is appointed executor of Joannes will, if not the property would pass under her will to charities.