By analysis of the facts, it is noticeable that several promises have been made by

Agatha followed by actions which may or may not suffice to constitute a trust or a
gift. The question to ask is whether the legal title to the trust property was vested in
the trustees by those actions. The maxims that ‘equity will not assist a volunteer’
and ‘equity will not perfect an imperfect gift will be taken into account, as well as,
the case law which applies them or possibly creates exceptions to them.

Regarding Bertie and the oral promise of Agatha to provide a home for him
and his daughter cannot constitute a declaration of a valid trust of land because it is
not ‘proved by some writing.’1 It is noticeable that it might result to the creation of a
gift instead, which would be hereditary and complete in accordance with the
formalities stated in the ‘Wills Act 1837.’ 2 However, in the absence of those
formalities the gift is imperfect, although, capable of being made perfect under the
rule of ‘donationes mortis causa’ (‘death bed gifts’) provided that three
requirements are satisfied. ‘Firstly, a clear intention to give, but to give only if the
donor dies… Secondly, the gift must be made in contemplation of death… Thirdly,
the donor must part with dominion over the subject matter of the donation.’ 3 On the
facts, it is not clear that her promise to Bertie is conditional upon her death because
she stated that she wished to provide a home for him and his daughter but did not
specify that this must happen when she is dead, nor it is clear whether she intended
the gift to be revoked upon a possible survival. Furthermore, it is not certain whether
death was contemplated, as for this requirement to be satisfied the donor must
suffer from a ‘life-threatening disease’4, and there is no evidence of one, apart from
that she is in very poor health. With regard to the final element, handing over the
keys to Bertie for the cottage which enable him to take possession and for the
deposit box with the deeds of the property which prove Agatha’s ownership is
sufficient to amount to ‘a parting with dominion over the essential indicia of title’ 5 as
‘it cannot be doubted that title deeds are the essential indicia of title to unregistered

1
Law of Propert Act 1925 s 53 (1) (b)
2
Wills Act 1837 section 9 (as amended by the Administration of Justice Act 1982 section 17)
3
Re Craven’s Estate [1937] Ch 432 per Farwell J at 426
4
Saulnier v Anderson (1987) 43 DLR (4th) 19
5
Sen v Headley [1991] Ch 425 per Nourse LJ at 438A
land.’6 This principle applies because the facts of ‘Sen v Headley,’7 present many
similarities to the facts of the given scenario (giving a key to a box with house deeds
for unregistered land while on a death bed) and ultimately, it was held that land
could be subject to a donatio mortis causa and thus, the transfer could be effective.
Moreover, Agatha could not do anything more to part with dominion, than giving the
keys to the house and giving access to the deeds; the land is unregistered and as a
result, there is no Land Certificate that needs to be handed over as well.

As far as Stephanie is concerned, the prevalent position at law is that she has
not acquired good title to the £500, since, she did not give any consideration for it
and generally, English law will not enforce such gratuitous promises. In equity, it
seems that she cannot keep the money either, because she is a volunteer who gave
no promise in return for the £500. Therefore, in law and equity there is a debt owed
by Stephanie to Agatha’s estate and beneficiaries under the latter’s will, could
enforce the repayment of it. However, by application of the rule in ‘Strong v Bird’ 8
Stephanie could be entitled to the money and an imperfect inter-vivos transfer could
be made perfect, precluding the existence of a debt both at law and in equity. The
rule applies when ‘a testator makes his debtor executor’9, and it is evident that this is
the case, as Stephanie is appointed as the executrix of Agatha, exactly the way in
which Bird was made an executor in ‘Strong v Bird’10. By so doing, any legal rights to
Agatha’s estate became vested in Stephanie and therefore, she acquired the legal
title to this money among other property included in Agatha’s estate. As a result,
Stephanie is not liable at law to repay the debt but she might be liable in equity,
unless she shows ‘a continuing intention [of the donor] to give’11 which is proved by
‘a legal act which transferred the ownership or released the obligation.’ 12 This
wording refers to the need for a formality such as a written document that evidences
the gift. The facts suggest that there was an oral promise (‘Agatha tells her not to
worry’), not a written one and it is unknown and possibly unlikely that there is

6
Ibid. at 437
7
[1991] Ch 425
8
[1874] LR 18 Eq 315
9
Ibid. per Sir G. Jessel, M.R. at 318
10
[1874] LR 18 Eq 315
11
Ibid. per Sir G. Jessel, M.R. at 319
12
Ibid.
written evidence of that promise, because it was made in an informal context
between relatives. This absence of a formality renders the transfer problematic.
Stephanie might only be able to rely on the legal title vested in her as executrix, as
there is no evidence of Agatha’s intention which ‘needs to be continuous’13 as well,
up until her death, that she was to transfer the beneficial interest to Stephanie. Sole
reliance on the legal title will preclude beneficiaries under Agatha’s estate from
claiming a right in rem (in the money) but will not prevent them from exercising their
rights in personam (against Stephanie) and suing her if she uses up the money for
herself (her conscience would be bound not to do so – moral reasoning would be
followed to that effect). However, if evidence is brought to the court that Agatha
intended to transfer the sum to Stephanie, then, the latter will be capable of
claiming it in equity.

Concerning the transfer of shares from Agatha to Harold, this could be

considered as a gift to the latter and the question is whether it was completed
before Agatha’s death regardless of the failure of the nurse to submit the necessary
formalities to this effect. As a general requirement, the transferor must firstly, fill the
transfer form, secondly, deliver it to the company and thirdly, the latter must
register the shares under the transferee’s name. In the case of ‘Milroy v Lord’ 14 as in
the given scenario, the third step was not followed, therefore, the transfer was held
to be incomplete and the trust failed. This conclusion flowed from the rule
established by the same case which, if complied with, volunteers in equity are made
beneficiaries. It was stated that ‘the settlor must have done everything which,
according to the nature of the property, was necessary to transfer the property and
render the settlement binding upon himself; that might be done by an actual
transfer either to persons intended to be benefited or to a trustee for them, or by a
declaration that the settlor himself held on trust for them.’15 This was reformulated
by the case of ‘Re Rose’16, according to which, the transferor must have done, not
everything that was necessary but everything within his power to complete the
transfer, in order for it to be effective. With the facts of the given scenario being
13
Ibid.
14
(1862) 4 De G.F. & J. 264
15
Ibid. per LJ Turner at 1190
16
[1952] Ch 499
almost identical to the facts in ‘Re Rose’17, the rule established by that case will be
followed by the court and it is very likely that the gift will be valid, as it was held in
the case itself. Particularly, the third step, which requires that the company must
register the shares under the beneficiary’s name is entirely outside of Agatha’s
powers. In addition, Agatha has done all in her power to deliver the form, in order
for the second requirement to be satisfied; it is outside her power that the nurse
must deliver it to the company and according to the rule in ‘Re Rose’18 she validly
created a gift on trust for Harold before her death. From the delivery onwards, the
nurse failed to deliver the form to the company in order to make the transfer
effective in law (by registration), therefore, Harold might not have the legal title to
the shares because they are not registered in his name, but he clearly has become a
beneficiary with an interest in the shares in equity, at the moment Agatha
completed the form; the legal title continued to be vested in Agatha who became a
trustee for Harold. This is confirmed by ‘Re Rose’19: ‘If a man executes a document
transferring all his equitable interests, say, in share, that document, operating and
intended to operate as a transfer, will give rise to and take effect as a trust, for the
assignor will then be trustee of a legal estate in the shares for the person in whose
he has made an assignment of his beneficial interest’20. This process is not contrary
to the maxim that ‘equity will not perfect an imperfect gift’, because the gift was
already perfect when Agatha delivered the form along with the share certificates to
the nurse, as direct delivery to the company would be impossible due to Agatha’s
physical condition. Alternatively, the court could distinguish ‘Re Rose’ 21 and apply
‘Pennington v Waine’22, another case with very similar facts to the ones in question.
The gift in this case was valid merely because ‘it would have been unconscionable
[for the donor] to recall the gift.’23 However, this case has been criticized as
unsatisfactory for the law of trusts and it might not be applied. A more radical
approach that the court might take, is an argument based on proprietary estoppel.

17
Ibid.
18
Ibid.
19
Ibid.
20
Ibid. per Lord Evershed MR, p.511
21
Ibid.
22
[2002] 1 WLR 2075
23
Ibid. per Arden LJ at 2090
‘Detrimental reliance’24 on Agatha’s promise would then need to be showed by
Harold, although, the facts do not clearly suggest so.

24
See three relevant criteria in Thorner v Major [2009] 1 WLR 776 per Lord Walker at para 29