CONSTITUTION OF TRUST

Trust itself must be completely and properly made. The subject matter must be transferred
from settlor to trustee. Without the trustee the receiving the property, then he is unable to
perform his duty as a certainty.

Situations: 1) Equity will not assist a volunteer

2) Equity will not perfect an imperfect

HOW THE SETTLOR TRANSFERS THE PROPERTY TO THE INTENDED TRUSTEE :

1. OWNER DECLARING HIMSELF AS TRUSTEE

- In an express trust, trust can be create easily.

- As long as all certainties is complete, then trust can be created.
- Settlor and trustee are one
- The settlor must declare validly & clearly that he is a trustee.
- The property no longer the benefit of the trustee. The property must
- Settlor covering up his property for another reason.

Problem: Whether there is valid declaration of trust?

Rule : 1) Equity maintains a distinction between a void gift and a creation
of trust.

- if it’s a gift, must be perfect (MUST TRANSFER PROPERTY)

- If trust, must be perfectly declared.

2) If there is no transfer from the owner to a different person, you must have
sufficient evidence to show that the owner is holding on the property as trust
property.

Richard v Delbridge (inter vivos gift)

Concept of inter vivos gift which means a person give gift to another person during life.
Defendant, and old man, have a lease in mill over a machinery, moderate, plant and stock.
He's doing things about agriculture. The land was leased (owned) to him. He wants to make
a voluntary gift (entire property) to his grandson, E, before he dies. However, E is a baby, he
signed the transfer memorandum on the entire lease and wrote ‘this deed and all of it,
belonging to E from this fall time, with all the stock-in trade." He gave the will to E 's mother
later on. The court held that there is no valid declaration of trust made to E

Problem: Whether it had been transferred or not? Can E receive this leasehold transfer?

Because E cannot receive because of age. E’s mother is not empowered as a trustee. Court
says that the words in the documents show a present, the intention to give a gift so there is
no trust here only gift.

If a man wanted to move the property without considerable must: 1) With the command of
law, he may either do such act to properly transmit / assign the property so that he is no
longer the owner and the owner is the new individual. 2) He has to declare himself a trustee,
he doesn't have to use the term "I am the trustee," but he has to do whatever it takes to
demonstrate that he is the trustee.
Paul v Constane
Mr. Constance’s marriage broke down, and he moved in with Ms Paul. They were
unmarried. Then, they decided to open a bank account together. They also note that they
are unmarried and the bank has said that if they are not married, it is not possible to open a
bank account together. Mr Constance held a bank deposit account in his sole name but said to Ms
Paul repeatedly, ‘the money is as much yours as mine’ Mr. Constane dies interstate (dying
without a will prepared). The former wife came later and wanted to claim all properties made
jointly with Miss Paul, including the bank. Miss Paul sues the former wife as Miss Paul is
made a trustee of the account. The court agreed since both of them clarified the unmarried
circumstances, both also use the money, and Mr. Constane declared that it can be used by
Miss Paul. Therefore, indeed, Miss Paul is the trustee and Miss Paul belongs to the house.

2. VALID AND EFFECTIVE TRANSFER OF PROPERTY TO TRUSTEE

- For the trust to be completely constituted, the owner must transfer the intended trust
property to the trustees.
- The transfer have to be valid and effective
- The trustee must obtain legal property! If not, no deals / transfer / open accounts can
be made for their children, etc.
HOW? :
Mode of Transfer

 The mode of transfer determine whether the property have been property
transferred or not. then it determines whether the property have been properly
constituted or not. The transferor must use the appropriate mode for the property to
be transferred. Different kinds of property require different kind of transfer.
 If the trustee has no legal title over the property, he cannot pass it to the beneficiary.
(For example, if the land is property, the national land procedure, Form 14A must be used).
If it's not property, it's chattel, the individual must be given it. The land MUST be transferred
to the person!
Milroy v Lord (1862) -google
General rule: An imperfect gift will not be perfected simply by interpreting the donor as a
trustee of the property that was to be the focus of that gift, nor will an insufficient trust be
made successful in order to support a volunteer. An incomplete transfer of property would
not be ideal for equity in any case.
In order to sell the property and make the contract binding on it, if you want to have a
voluntary contract, the settlor must have done everything, depending on the nature of the
property included in the settlement was necessary to be done. He may do this by actually
transferring the property to the person for whom he is to provide, transferring the
property to trustee for purpose of settlement or declare himself holding in trust. If in
any way the settlor decided to move, then it would be that way. Even if there are witnesses
and evidence, but there was no time to properly move the land, the court will not proceed on
behalf of the settler. The property must be given by the settlor himself because if not then it’s
not valid.
FACTS
A voluntary deed was made by Thomas Medley who owned Bank of Louisina (Bank) shares.
The Bank required that the shares be transferred in compliance with the regulations in the
constitution of the company. Thomas had decided to give his sister, Eleanor Milroy, the
shares. With Samuel Lord, he signed a deed. The Lord will keep 50 trust shares and divident
for Eleanor. He also granted Lord a right of attorney to collect dividends on the shares and to
comply with the provisions of the company constitution. This was not done by the Lord. No
conversion of the shares to the name of the Lord was made. After signing the deed with the
Lord, Thomas lived for three years. Samuel Lord received dividends and passed them on
during those three years. The shares remained in his name when Thomas died. The shares
belonged to her, Eleanor said. The Lord proclaimed that trust was ineffective.
ISSUE
Was lord in breach of trust?
HELD
It was not successful to move trust land. No perfect trust was created. Thomas had not
exchanged the shares properly. An unsuccessful outright transfer should not be considered
to be an effective expression of confidence. The settlor has to do all that is required to move
the trust property and make the settlement binding in order for a trust to be legitimate.
Thomas had not exchanged the shares properly.
Voluntary Covenant to Create a Trust
Covenants are promises formally expressed by being written in a deed.

Lee Eng Teh & Ors v Teh Thiang Seong & Anor

Kwang Hwa wants to build a school. the first defendant has volunteered to give piece of land
to school but he does not own this land. His construction company does not own the land
too. After this offer of sale by 1 st defendant, one Eng Chi Wat volunteered to donate another
83 acres of land, however rejected by Kwang Hwa. The 1 st D made an offer to donate the
land which he had previously offered to sell the land which he nor his company do not own.
A dinner was held out of his generosity. 1 st d made a speech in reply and said that he had
obtained consent of shareholders of his company to donate this land to the school,
confirmed by a letter which was read out. Another company then planned to purchase the
land where 1st D was the manager but this new company had not made any promise in
donating the land. The issue is whether 1st defendant who is a manager of this new company
make representation to which the second defendant company be liable to? Not necessarily.
The company can then choose to ratify (consent to) whatever representation that were made
by the promoter before the company came into force by having an AGM.

The court held that whether a trust is enforceable or not depends upon on whether it is
completely or incompletely constituted trust. A trust is complete when the trust property has
vested in the trustees for the benefits of the beneficiaries. Until this has been done, the trust
is incompletely constituted. The distinction is important on question of consideration. In other
words, the question to be considered whether valuable consideration was given for creation
of the trust. if valuable consideration was given, in exchange of creation of trust, then it does
not matter whether the trust is completely constituted or not. thus, will perfect an imperfect
conveyance.
1st d did nothing more than a gratitious promise to donate land. Thus, there is no question on
an incompletely constituted trust. he had merely gave empty words and promises. The 2 nd D
company had not even been corporated when he made the promise. The 1 D’s promise
could not bind the company. Hence, neither party can be bound to be made to donate the
piece of land.

In 1954, Kwang Hwa High School building group was founded by 75 residents in Klang who
wanted to establish a school. The first (chairman) defendant. The community's aim is to
collect funds to establish a new Chinese school in Klang. The first defendant offered to sell
Kwang Hwa a piece of land in order to control the land. He was not the registered owner of
the land at the time of the deal. He is the building company's partner. They purchased a
piece of land to make a resident of a house and another portion to create a school.
HOWEVER, they have not yet bought the land.
Another person (Eng Chi Wiat) decided to donate 83 acres of land to establish a school after
a while, but he was not the owner of the land. They went to speak about the land, but the
donation was rejected by the school. As for the first claimant, he insists on donating the
previous property that he and the building company do not own. They purchased a piece of
land to make a resident of a house and another portion to create a school, HOWEVER, they
have not yet bought the land. Another person (Eng Chi Wiat) decided to donate 83 acres of
land to establish a school after a while, but he was not the owner of the land. They went to
speak about the land, but the donation was rejected by the school. As for the first claimant,
he insists on donating the previous property that he and the building company do not own.
The land has yet to be purchased by Kwang Hwa High School, however. They finally went to
court and the court claims that "the first defendant is the owner of the property at no point in
time," so technically none of these people was a trustee of the property. So the company
purchased the property. But the offer made before the company bought the land is not true
and because not the company that offer, the company has no duty to donate the land, the
yang offer is a person / individual. The company can choose whether or not to sell the land.
If you never transfer the property in the proper mode, there will be no trust and you cannot
call yourself a trustee, then you can voluntarily create a trust.
An intended gift where the settlor had done all he could to transfer the property to the
trustee

Scoones v Galvin
The memorandum of transfer of property (Borang A14) was passed to the settler before he
died. Nevertheless, he kept the title certificate to himself. There is no faith because, by not
giving the certificate of title to the trustee, he did not do anything he could. The prosecutor
must take the permit for the land office to move the property in order to execute the move, as
well as the proof that the settler owns the land. Therefore, Settlor did not satisfy the criteria
based on the Milroy case and did not do anything required.
Court: there is no transfer of property as it is an incomplete gift that the court would not move
in for the settler to complete it.
Lee Eng Teh & Ors v Teh Thiang Seong & Anor
When he agrees to give the land to Kwang Hwa School, the first defendant does not own the
land. The court will not use the equity to compel the land to meet the obligation or
expectations as a result.
Richard v Delbridge
 - Up there
Corin v Patton
Facts: Mr. Patton and Mrs. Patton were joint tenants of land that had been registered. Mrs.
Patton became ill and agreed to split the joint tenancy from her husband in anticipation of
her death and pass her beneficial interest in the joint tenancy to her brother in order to
maintain trust in her children. The necessary paperwork was drawn up by a solicitor and a
transfer deed was signed by Mrs. Patton, but Mrs. Patton passed away before she was able
to acquire the certificate of title for the property in order to file the transfer memorandum. The
transfer memorandum, however, remained unregistered.
Issue: The query arose as to whether, considering the fact that the memorandum of transfer
was not recorded, the equitable title had been transferred and, accordingly, the joint tenancy
was severed.
Held: The overarching test for the transfer of equal title was whether "all that was required"
(para 16) had been accomplished by the party awarding the interest in order to effect the
transfer. Purpose was not appropriate for a shared tenancy to be severed. The concern was
not whether the transfer was registered or not, but rather whether it was in 'registrable' form
and whether Mrs. Patton's party had done everything required for registration without any
further act. With regard to the facts of the case, Ms. Patton had not requested a certificate of
title from a mortgage at the bank and, thus, had not taken all the measures required to pass
the certificate of title to her brother and to terminate the joint tenancy. The Court also held
that it was not necessary for a declaration of intention to move to effect a unilateral
severance of the joint tenancy. The Court therefore held that the transfer had not been
effective and the joint tenancy had not been severed.
Corin said that he is taking over patton’s spot as co-tenant. The trust was executed by patton
which was taken away by solicitor for its registration. The certificate was held by the bank
mortgaging the property because a loan was taken over by the property, and has not finish
paying up yet. Whether the property have been property transferred in the correct mode
because the certificate of title is with the bank? The judge declared that mr.patton was
entitled to the whole of the property, the co-tenant with mrs.patton. however, the trust was
held to be not constituted. In COA, mrs.patton had not effectively alienate the property in
question. If an intending owner of a property had done everything to effect a transfer of legal
title, then equity would recognize the gift. So long as the donee, have been equppied to
acheieve the transfer of legal ownership, the gift was complete in equity. Mrs.patton had not
done all that was necessary to place the vesting of the common law title within corin’s
control.
In Re Rose. Rose v Inland Revenue Commissioners
The settlor transferred 10,000 shares in a private company to the trustees for voluntary
settlement of consideration of natural love and affection. Transfers were properly executed
according to company’s assosciation. It was delivered to the trustee in April 1943, however
they were only registered in June 1943. Whether the settlor had divested himself of the
shares in April or June? The court held that since the settlor had done everything he could
have done to divest himself of the shares, April is the date of transfer. Bona fide possession
and enjoyment of shares had been assumed by the transferees on that date. Thus, the
trustees acquired it already. Where the purported divesting of legal title is ineffective, but
there is consideration, then the party who provided consideration can sue saying that there
is a trust. otherwise, equity will not assist a volunteer. If you’ve given consideration, then
you’re not a volunteer.
The deceased executed the transfer instruments and transmitted them to the transferees
with the appropriate certificates.
Held: The transfers were transferred from the date on which the transfers were completed
and delivered according to the legal title, to the provisions of the articles on registration and
to the discretionary power of the directors to deny registration, the whole legal and equitable
title of the deceased in the shares and all advantages attached to the shares. A transfer
under seal in the form appropriate under the company’s regulations, coupled with delivery of
the transfer and certificate to the transferee, does suffice, as between transferor and
transferee, to constitute the transferee the beneficial owner of the share, and the
circumstance that the transferee must do a further act in the form of applying for and
obtaining registration in order to get in and perfect his legal title, having been equipped by
the transferor with all that is necessary to enable him to do so, does not prevent the transfer
from operating, in accordance with its terms as between the transferor and transferee, and
making the transferee the beneficial owner. If the donation was complete, but the donor kept
the subject matter, Milroy v Lord did not preclude the imposition of a trust as a matter of law.
Covenant to Settle (agreement/lease/deed)
Instead of selling the property to the trustee / made himself a trustee, the proprietor
contented by deed to transfer the property.
Whether or not the other party to the covenant will enforce the covenant specifically?
- no consideration provided, the covenant may not be specifically enforcing because equity
does not assist a volunteer.
-consideration provided, covenant may specifically enforce.
Equity recognises consideration of marriage.
Rights to enforce covenant not only to the parties but to those who are within the marriage
consideration. HOWEVER, those who are not in the marriage consideration (illegitimate
child, child from former marriage, children to whom one of the parties in loco parentis).
Next of kin pun is also within the marriage consideration.
Re Plumptres Marriage Settlement
Held: since they are voluntary, they are not under the consideration of marriage, they will not
sue. Where a trust is fully constituted, the voluntary beneficiary shall have the same right as
the beneficiaries who have taken account of the trust.
Pullan v Koe
Some after-acquired property was moved from wife to husband's bond. Husband dies. The
Trustee sues the executor of the husband to pass the bond to them so that they can be
owned by the Trustee on marriage settlement trusts.
Held: Indeed, it is the trustee 's responsibility to enforce the covenant
EXCEPTIONS TO THE RULE THAT EQUITY WILL NOT ASSIST A VOLUNTEER
1)Rule in Strong v Bird (only for gift)
General rule: During his lifetime, the donor expressed a present intention to make a
donation of personal property to another (donee) when the donor dies, the donee becomes
the executor of the will OR in cases of intestacy (donor dies without leaving guidance about
who should obtain their property), the donee is entitled to keep the property for his / her own
advantages.
From his stepmother, Bird borrowed $1,100. The stepmother lived in his home, and she paid
$212.10 every quarterly of the year as rent. By deducting $100 from the quarterly
instalments, it was decided that the debt could be paid off. Deductions for this sum were
made for two quarters, but the stepmother declined to maintain the deal (deducing debt from
her rent) on the third quarter instalment, and she generously paid $200 until her death. Up
until her passing, she continued to do so.
Strong alleged that the $900 balance of the loan should be paid by Bird. The release of the
debt owed by Bird to his stepmother (repaying the loan) was not legally effective.
Reasons:
i. It was not given under seal.
ii. No consideration had moved from stepmother to Bird. As she insisted to make full
payment of rent without deduction.
As her sole executor, Bird was named and the stepmother later died. Strong's next of kin
claimed for the $900 which Bird had yet to pay for the loan which strong has exempted him
from. Held: Bird's appointment as executor has released the debt and any claim in equity
was rebutted by continuing intention of strong to give a gift of that $900. Second, the
intention of strong to give the sum of $900 was completed by 9 quarterly payment of
$212.10. Thus, strong’s family cannot claim the $900.

Re Stewart
I) The vesting of the property at the death of the testator in the executor completes the
imperfect gift made over a lifetime.
(ii) The intention of the testator to attribute a beneficial interest to the executor is sufficient to
countervail the equity of the beneficiaries on the basis of the will which the testator has
attributable to the executor to the legal estate.
1. If the donor expressed an intention to make a gift of his personal asset, that intention
to make the gift, remains until the donor dies.
2. The donee becomes the executor of the will. The donee is allowed to hold the
property for his benefit.
Requirement for the rule to apply:
(a) There must be an intention to create and intervivos gift (gift made during person’s
lifetime)

(b) The donor’ intention to make the gift must continue until the donor’s death. The
benefit given to the donee must be in a vague term.

(c) The donee must be appointed as an executor or one of an executor/ 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. (refer Re Gonin).
 Re Gonin
Lucy, was born illegitimate, gave up her career to take care of the parents and the
mother promised her the house. The mother wrongly thought that her illegitimate
daughter could not be entitled to property under her will, and thus left her a cheque for
$33,000 which was discovered after the mother’s death. The cheque could not be
cashed as the cheque ceases to exist upon the mother’s death thus the bank’s mandate
to pay. The daughter was appointed administratrix of her mother’s estate. As to whether
she was entitled to the house, the court answered this in the negative in the absence of
sufficient evidence indicating a continuing intention on the part of the mother. There was
a termination of the intention of the gift by the mother of the house when she had
replaced it with a cheque. Unfortunately, the cheque cannot be cashed.
The rule in Strong v Bird could not assist the daughter. Walton J had said ‘the intention
changed by the latest in 1962 when the deceased drew her cheque in favour of her
daughter. 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’s death.
No immediate gift, and no gift of land.

2) Proprietary Estoppel  CANNOT RETRACT PROMISES

Estoppel by support or acquiescence, where A deliberately induces B to act OR
acquiescence to the detriment / rights of the A.
Where the person is stopped from going back on his words, arrangement or from the
representation which he already made out. Where other parties had relied on this
representation and has put himself in a place of advantage. Thus, equity does not allow this,
creating estoppel.
Effect: B could have been entitled to perfect an incomplete transition, IF B could
demonstrate that A had rendered representation that A wished to rely on and that B was
genuinely RELIED UPON, causing B to suffer detriment.

Dillwyn v Llewelyn

A father wanted the son to stay nearby and encouraged him to build a house on the father’s
land. The father promised to convey the land to the son but this was not by deed. No actual
conveyance took place and the son spent $14,000 to have the house constructed. It was
held that the son was entitlted to have the imperfect transfer perfected, after the father has
passed away.

Pascoe v Turner

In a house occupied by the complainant, the complainant and the defendant resided
together. They were not married, but they lived as if they had been. He met another woman
in 1973 and deserted the defendant. He told her she could have the property, but never
transferred the title formally. She stayed in the house and invested money in the illusion that
she owned the house on redecoration and improvements. He was conscious of her spending
and conviction, but also did little to stop it. He brought a lawsuit in 1976 seeking to evict her.
She entered a defence and counter claim.
Issue: will the husband be prevented from refusing the right to ownership of the house to his
wife?
Held: the defendant must live in the house and was entitled by proprietary estoppel to have
the title transferred to her. Equity will assist her as a volunteer.
Reasoning: The detrimental dependency of the wife (by decorating) aided by way or
proprietary estoppel to create an equity. Detrimental dependency just needs to be minimal.
The husband was forced to give his wife a home. A court does not require persons to live
together against their wishes.
Ramsden v Dyson,
There are 3 elements needed in PE: i) A believed that he had or was going to have a right in
or over B’s property; ii) B created or encouraged the belief; and iii) A acted in reliance on the
belief.
3)Donatio Mortis Causa (a gift made because of death)
- If the donor wishes or allows the donor to retain the property that will belong to the donor, if
the donor dies, equity will perfect the title of the donor even if it might be for a volunteer.
- An immediate of gift of personal property is made by a donor who expects to die in near
future.
Sen v Headley

a) the gift must have been made in contemplation of death

It means that the donor fears that he will die due to extreme disease or other harmful factor
in the near future. BUT not always in the hope of death.
In Smallacombe v Elder's Trustee & Executor Co Ltd, recognized that this contemplation
must be more precise than an understanding of the general reality that inevitably we are all
going to die; "the donor must have imagined a relatively early death from some cause or
another."
Merely considering that death will come is not sufficient. Thus, a serious disease or an
hazardous journey will suffice.

Cain v Moon
The court said that a person not in contemplation of death gave a deposit note to the mother
to take care of it for her. Then, the donor was in contemplation of death and gave the note
absolutely to the mother. She died. The husband claims that there is no donatio mortis
causa, because the note was given to her at the time there was no contemplation of death.
The court held that the gift by changing the character on which the mother already held
possession of the note, would sufficient delivery for donatio mortis causa.

b) The gift must have been conditional on death (the gift must be made in condition
that it is absolute and perfected only on donor’s death)
-means that there is clear intention to part with the whatever is given only if the donor dies. If
the donor recovers, then the gift is recoverable.

In Re Lillingston, the gift ought to be conditional one, namely, if the donor recovers, he or
she shall have the right to resume dominion of the relevant property.

The plaintiff is named Robert. He was the owner of a hotel managed by the first defendant,
his wife. In this hotel, there was a woman, Mrs Elizabeth who was aged 78 years, she took
up permanent resident at the hotel upon obtaining assurance from the wife that she would
not be sent to an hospital. The wife nursed her with assistance of a trained nurse, twice a
day. Mrs Elizabeth on sick bed, said she is ‘done for’ and that she is ‘very near her end’.
Mrs.Lilingsto said to the wife that ‘I am going to give you all my jewelleries. I am giving you
my key to the save deposit and when I am gone, you can go and get the jewellery’. She then
handed the wife the key to her trunk saying “Here is the key to the trunk right there. You will
find the key to the save deposit on th right side on the finger of a glove. I want you to have
all my jewelleries except for the diamond necklace which is for my granddaughter”. She also
took a packet from under her bed and said it is for the wife, it contained jewellery. They all
agreed that the packet should be kept in the trunk, and Mrs.Lilingston opened the trunk with
the keys and placed the packet inside and told the wife to keep the key. The court said that it
is not certain during the time of the gift that Mrs. Lilingston would die few days although she
thought she was to die soon. In those circumstances, the essential condition that the donor
must intent the subject matter of the gift to revert to him should he recover was satisfied.
There was no expectation that she will die soon. There was donatio mortis causa.

c) Delivery of the subject matter of the gift.

With regard to chattels, the handing over of the property with the intention of partial dominion
will be a standard effective distribution, but the same result can be obtained by granting
effective control to the donee.
Re Lillingston (deceased); Pembery v Pembery and Another
L handed P a package of jewellery and the keys to her trunk in contemplation of death,
telling her that the trunk contained the key to her Harrods security deposit box, which in turn
contained the key to her safe deposit in the area. L said she wanted P to have all her
jewellery and P should go and get the jewellery in these secure deposit boxes after her
death. L and P decided to keep the jewellery packet in the trunk that was in L 's office, and to
put the jewellery packet in the trunk. L then announced "keep the key: it's yours now." In this
case, the court concluded that there was a legitimate donatio mortis causa of the jewellery
packet as the key was given to the donee and the key opened the boxes containing this gift,
the courts kept the reach of the gift, i.e. the gift was the jewellery inside, as long as the key
opened the package.
Woodard v Woodard
The Court of Appeal upheld a finding that there had been a legal donation where one set of
car keys had been handed over where the donor said "you can hold the keys, I can no
longer drive it." and the donor kept the other set of keys or the spare set.
The defendant’s father was admitted in the hospital because of leukemia and would die 4
days after. The defendant had the father’s car and its key. 3 days before the father died, in
the presence of the mother, that the defendant could keep the keys as he would not be
driving the car anymore. After the father’s dead, the plaintiff who is the sole beneficiary of the
husband’s estate, she claims the proceeds of the sale of the car amounting for 3,900
pounds.
Can the gift (car) given to the son, though the will states that everything goes to the mother?
The defendant contended that the father had made a outright gift or a donatio mortis causa.
The son gave evidence that if the father have recovered, obviously he would have had the
car back. It was held that the car was a gift to the son which is outright gift/donatio mortis
cause. When the son said it was an outright gift. The mother appealed saying it is not an
outright gift or donatio because mere passing of keys does not amount deminient over the
car. The keys does not represent the car legally. The court decided that since the defendant
knew that the father would have had the car back if he recovered, thus there is no outright
gift. However, it was clear that the gift was made in contemplation of intending death and on
condition that it is on absolute and perfected upon his death. In this circumstances, the
handing over of the keys of the car to the son was sufficient to indicate that the father
intended to pass the car.
Thus from a bailment (tc of things till owner gets back), it changed to a gift.
In Sean v Headley, court held that land may be subject to donation.

4)Benevolent Construction
Merely created as a ‘dan lain-lain’. Benevolent means with good intention and construction
means how to interpret the situation.

The strict application of the rule in Milroy had been relaxed in the cases of

Re Rose (1952)
The court relaxed the strict rule and found that it was not necessary for the donor to have
done what it wanted to do to complete the donation. It was necessary for the donor to have
done everything in his power to transfer the title to the trustee, even though the transfer was
not registered. Therefore, in Re Rose, faith was built if, for another reason, the donor does
everything in his power to divest himself of the trust property and pass the legal title fails.
T Choithram International SA and others v Pagarani and others the court had further
relaxed the strict rule in Milroy. The judge held that “although equity will not assist a
volunteer, it will not strive officiously to defeat a gift”.
A man owning most of shares and held deposit balance in 4 companies. Having provided
generiously for his first wife and numerous children. He intended to leave remainder of his
wealth to charity which he founded, Choithram International Foundation and it would receive
most of his assets when he dies. He executed a trust deed establishing the foundation.
Pagarani is the settlor, and 7 trustees include pagarani. After signing the deed, he stated
orally that he is giving all his wealth to the foundation. He also asked his accountant to
transfer all his wealth with the companies to the trust. by the time of his death, he had not
actually executed any share transfer nor had he executed a declaration of trust. he did not
do the step that is needed to transfer the shares, he just did it orally.
Perfect gift can only be made in 2 ways. First, by actual transfer to the donee, with intention.
Second, if by the donor declaring himself to be the trustee, for the donee’s benefit. The trial
judge was under the first caregory as he has not transferred to the 7 trustees. Although the
words used by pagarani
A man lying on his deathbed was attempting to declare faith in his land. The purpose of the
settler was to be one of nine trustees on that land. However, the dead man refused to pass
the legal title of the property to all nine trustees and, as a result, the trust may not have been
validly constituted under the ordinary law of trusts. Nevertheless, even though the deceased
person had not passed the legal title of the trust property to all nine trustees as trustees, it
was held that a legitimate trust was established over that property.
1. Pagarani would create foundation by a trust deed, name the 7 trustees.
2. He would be the trustee first and hold onto the property
3. Then, others will get them as gift after his death.
4. Just because he did not do what he was suppose to, does not mean he did not
intend to do it.

However, he met an oral immediate gift to the foundation. Court said that this case does not
fall within either of the 2 possible methods which a complete gift can be made. Privy council
said that it is necessary to make an analysis of rules of equity to complete gift. As a result,
eventhough equity will not aid a volunteer, will not perfect an imperfect gift, it will also not
strive officiously to defeat a gift. Thus, allowed the defendant’s, foundation, claim and
transferring the property to the foundation.
Pennington and another v Waine and others
In this case, this principle had been implemented (in accordance with Choithram) in order to
perfect the gift of shares in circumstances in which the donor had neither made a declaration
of confidence in the shares nor had he done all that was appropriate for the donor to make
the transfer of the shares. This decision expands the theory beyond its former limits, where it
could be seen that the donor had already done what it wanted to do to finalise the move.