ExceptionTo the Rule That Equity Does Not Assist a Volunteer.

RE STEWART [1908] 2 CH 251

• Neville J; basis of the rule:

First that the vesting of the property in the executor at the testator’s death completes the imperfect gift made in the lifetime and secondly that the intention of the testator to give the beneficial interest to the executor is sufficient to countervail the equity of beneficiaries under the will, the testator having vested the legal estate in the executor.

  Requirements for the Rule to Apply

  (a) There must be an intention to create and intervivos gift. (A gift to take effect on the death of the donor is not covered by the rule.)

(b)   The donor’s intention to make the gift must continue until the donor’s death. The benefit to be given to the donee must not be in a vague term.

(c)  The donee must be appointed an executor or granted letter of administration of the donor’s estate.

(d)   The subject matter must be capable of enduring the donor’s death.

RE GONIN: [1977] 2 ALL ER 20.

-   A daugther returned home to look after her parents and they promised her their house in return.  The donee was born illegitimate, and the mother mistakenly thinking thought that she could not leave her the house because of her illegitimacy.

-  She wrote s cheque for £33,000 in the daugther’s favour which was found after her death.

-  The donee/ daughter was appointed as the administatrix of her mother’s estate. She claimed the house under the rule of Strong v Bird.

-   Ct: There was no continuing intention on the mother’s part that the daugther shoul have the house. The giving of cheques indicated that she should have the money instead.

Walton J said;

“’. . . so far as the land is concerned no such continuing intention can be found . . .  I think the intention changed by the latest in 1962 when the deceased drew her cheque in favour of her daugther. I find it impossible to think that from then on what she really had in mind was anything other than that the plaintiff would inherit the cheque on the deceased death – no immediate gift, and no gift of land.”

Malaysian Case

RE SYED HASSAN BIN ABDULLAH ALJOFRI, DECD; SYED HAMID BIN HASSAN ALJOFRI V SHARIFAH SALMAH BINTE ABDULLAH ALHABSHI & ANOR[1953] 1 MLJ 190

• Held : The plaintiff had to prove that there was on the part of the deceased a present intention to make an immediate gift and that such intention survived until the date of the deceased's death.
•  The claimant must prove his case against the estate clearly and convincingly

LEE HUN KEE & ORS V YEOH SENG HUAT [1965] 2 MLJ 231

• the deceased intended to make a gift out-and-out of
  the business to the first plaintiff and the defendant and such gift was of
  the business and the premises in which it was carried on. Such gift was
  perfected by the appointment of the defendant as one of the administrators of
  the estate of the deceased.

SECOND EXCEPTION: DONATIO MORTIS CAUSA / GIFT OF  ACCOUNT OF DEATH. 

• If the donor intends or wants to the donee to keep property which would belong to the donee, if the donor dies, equity would perfect the donee’s title although he may be for a volunteer
• The principle was stated by Lord Russell CJ in Cain v Moon [1896] 2 QB 283 and these have been restated by Nourse LJ in Sen v Headley [1991] 2 All ER 636 

Three general requirements (Snell’s Equity)

•  First, the gift must be in contemplation, although not necessarily in expectation, of impending death.
• Secondly, the gift must be made upon condition that it is to be absolute and perfected only on the donor’s death, being revocable until the event occurs and ineffective if it does not.
• Thirdly, there must be a delivery of the subject matter of the gift, or of the essential indicia thereto, which amounts to a parting with dominion and not merely physical possession over the subject matter of the gift.

SEN V HEADLEY [1991] 2 ALL ER 636

• Mr. Hewett who was at the age of 86, on his death, gave the claimant-  Mr. Sen, the keys to a steel box with the title deed, saying to her : The house is yours Margaret. You have the keys. They are in your bag. The deeds are in the steel box.”

• Mr. Hewett and Mrs Sen had lived together as if married for 30 years. Title to the house was unregistered.
• After Hewitt’s death, the gift was challenged by his next of kin.
• When this case when to the High Court, the judge thought that the third critieria was not satisfied, ie delivery of subject matter, as Hewett had not parted with dominion over the house.
• Nonetheless, the judgment was reversed in the Court of Appeal.

i)        Contemplation of Death.

• The donor must have made the gift in contemplation  though not necessarily in expectation of death
• An intervivos gift during the lifetime of the donor is incapable of ranking as a donatio Mortis Causa
• Eg:-  Suffering from a serious disease
• undertaking a dangerous journey with strong possibility of loss of life would qualify as event in contemplation of death.
• It does not matter if death occurs from an event other than the one originally contemplated.

ii)        Dominion over property must be transferred to Donee

• There must be an effective delivery of the gift to the donee.
• In other words the donor must be taken to have parted with dominion over the subject matter.
• By having a control over the property – an indication that the donor is already parted with the property
•   He must have delivered the subject matter of the gift to the donee or transferred to him the means or part of the means of getting that subject matter, eg: delivering of keys, for instance a car key,delivering a key to a box containing the essential indicia of title.

      

WOODDARD V WOODARD [1991] FATM LAW 470

•  the donor who was hospitalized suffering from leukemia
• Prior to death, he told his son that the latter t could keep the car.
• The donee (son) already had possession of the car and the trial judge decided that it was an outright gift.
• COA : it was a donatio mortis causa and there was no need for the donor to reacquire the car and redelivering again

Exceptions

•  Cheques, promissory notes, stocks and shares can not be subject of donatio mortis causa, even if their possession is delivered to the donee.

iii) Conditional on Death

•      If it cannot be shown that the gift was to be revert back to the donor in the event he recovers, the inference is one of an imperfect gift, intervivos.

•      In Re Lilingston [1952] 2 All ER 184, it was held that the gift should be conditional, i.e. on the terms that, if the donor should not die, he should be entitled to resume complete dominion of the property the subject matter of the gift.

THIRD EXCEPTION: PROPRIETARY ESTOPPEL

•  Estoppel by encouragement or acquiescence
• Where one party knowingly encourages another to act OR acquiesces in the other’s rights.

Effect

   

     That party will be unable to complain later about the infringement and he may be required to make good the expectation which he encourages in the other party.