RULE

EXCEPTION TO THE RULE:

‘EQUITY SHALL NOT
ASSIST A VOLUNTEER’
a volunteer can enforce an incompletely
constituted trust provided that it come under
the three exceptions.

LAWS 3331 EQUITY AND TRUST II

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Three Exceptions I. Rule in Strong v Bird

• Taken from the case of Strong v Bird.(1874) LR 18 Eq 315

1. The rule in Strong v Bird • Permits the fortuitous perfection of imperfect gifts.
2. Donatio Mortis Causa • In theory the situation fully be an incompletely
3. Proprietary estoppel. constituted trust.

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The rule in Strong v Bird [1894] LR 18.

If an incomplete gift is made during the donor’s

lifetime
• Authority for the proposition that a debt is released at law if the
debtor becomes the executor of the creditor’s estate.
• The appointment of the debtor as executor of the creditor’s estate the donor had appointed the donee as executor (testate
vests the property in the debtor and thus completes the gift.
cases)
• Rule of Strong v Bird upheld in Malaysia through the case of Lee Hun
Kee & Ors v Yeoh Seng Huat [1965] 2 MLJ 231; the vesting of the property in the donee in his capacity as executor or
– If the donee happens to be the deceased donor’s executor or administrator may be treated as the completion of the gift.
administrator, it is accepted that the gift is completed, because
the donee acquires the legal estate.

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 Strong v Bird.(1874) LR 18 Eq 315

Facts:
• Bird borrowed £1,100 from his stepmother who lived in his
• Equity should allow the common law position house paying £212.10s per quarter for board. It was agreed
that the debt should be paid off by the stepmother
to prevail where a deceased creditor had by deducting £100 from each quarterly payment when it
appointed his debtor as executor. fell due. This was done for two quarters but, in the third
quarter, the stepmother paid the full usual amount that
is£212.10s. she continued to pay such amount until her
death four years later. Bird was appointed as sole executor
of his stepmother’s estate. The next of kin claimed that
Bird owed the estate £900.

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Held; Jessel MR :

“. . . it appears to me that there being a continuing

intention to give and there being a legal act
• The court held that the debt was discharged which transferred the ownership or released the
as the appointment of Bird as executor obligation – for it is the same thing – the
transaction is perfected, and he does not want
released the debt at law as he could not sue the aid of a court of equity it out, or to make it
himself. Further, the stepmother had shown complete, because it is complete already, and
a clear intention to forgive him the debt and there is no equity against him to take the property
away from him.”
this intention continued until her death.

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Re Stewart [1908] 2 Ch 251 Neville J in Re Stewart [1908] 2 Ch 251

Basis of the rule

• Dr Stewart intended to give his wife three bonds, each worth 500 1. that the vesting of the property in the executor at
pounds. Shortly before his death, he handed his wife an envelope the testator’s death completes the imperfect gift
containing details of the bonds. He was unable to complete the transaction made in the lifetime.
before his death. His wife was one of executors.

• Held: Dr Stewart had successfully made a gift of the bonds to his wife,
because on his death, she acquired the legal estate in them, as his
executor, and this was what he intended. 2. that the intention of the testator to give the
beneficial interest to the executor is sufficient to
defeat the equity of beneficiaries under the will

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 Requirements for the rule to apply
Re Gonin: [1977] 2 All ER 20.
(a) There must be an intention to create an inter vivos gift.
(any gift that takes effect on the death of the donor is not covered by
this rule.)
• During the Second World War, Miss G had acceded to her parents’
request to return and live with them and look after them. She
b) The donor’s intention to make the gift must continue until the donor’s alleged that there was a contract under which in return, they had
death. The benefit to be given to the donee must not be in a vague term. agreed to transfer the property to her when they no longer needed
it. The father died and, years later, the mother. Miss G claimed to
be entitled to the house
(c) The donee must be appointed an executor or granted letter of
administration of the donor’s estate.
• Held: The court finds that there was no continuing intention on the
mother’s part that the daughter should have the house and that the
giving of cheques indicated that she should have the money
instead.
(d) The subject matter must be capable of enduring the donor’s
death.

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Walton J held; Re Estate of Choong Lye Hin [1977] 1 MLJ 96

Lee Hun Hoe CJ of Borneo:

• The gifts to the plaintiff in respect of the Gim

“’. . . so far as the land is concerned no such continuing intention Kee account was clearly an imperfect gift but in respect
can be found . . . I think the intention changed by the latest in of the gifts to the three defendants it was perfected by
1962 when the deceased drew her cheque in favour of her
daughter. I find it impossible to think that from then on what she the rule in Strong v Bird, when the donor named them
really had in mind was anything other than that the plaintiff would as his trustee and executor.
inherit the cheque on the deceased death – no immediate gift, and
no gift of land.”

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Re Syed Hassan Bin Abdullah Aljofri, Decd; Syed LEE HUN KEE & ORS V YEOH SENG HUAT
Hamid Bin Hassan Aljofri V Sharifah Salmah Binte
Abdullah Alhabshi & Anor [1953] 1 MLJ 190 [1965] 2 MLJ 231

• he plaintiff who was one of the executors of the deceased's estate

claimed that the deceased had made a gift to him of a piece of land
during his lifetime. He also claimed that the house standing on this land
and in which he has been staying was built with moneys belonging to • The deceased intended to make a gift out-and-out of
him. His Counsel relied on the principle in Strong v Bird the business to the first plaintiff (his wife) and the
defendants (his brother) and such gift was of the
• Held: to succeed in this case the plaintiff had to prove that there was on business and the premises in which it was carried 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. Held : Such gift was perfected by the appointment of the
defendant as one of the administrators of the estate of
• From the evidence, the plaintiff has not discharged the onus upon him to the deceased.
prove that there was a valid gift of land to him by the deceased. The
plaintiff's claim on the issue will be dismissed.

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 II. Donatio Mortis Causa

• Donatio Mortis Causa (“DMC”) is a gift which is made in

• Gift in contemplation of death. contemplation of death of the donor and the volunteer is assisted
by equity to perfect the gift at the donor’s death in cases where it is
imperfect.
• If the donor intends the donee to keep • Such gifts are made by a person who realises the imminence of his
property which belongs to the donor, and if death and who desires to make a gift of the property on the
condition that if, for some reason he recovers, then the gift will be
the donor dies, equity would perfect the revoked and the property returned to him
donee’s title although he may be a • A DMC is perfected on the donor’s death
volunteer • DMC provide a further exception to the maxim that equity will not
perfect an imperfect gift

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Cain v Moon [1896] 2 QB 283 Sen v Headley [1991] 2 All ER 636

• The principle was stated by Lord Russell CJ;

i. The gift made is in contemplation of death, that is, it • Mr. Hewett and Mrs Sen had lived together for 30 years. Title to
the house was unregistered.
is conditional upon death and reclaimable upon
• After Hewitt’s death, the gift was challenged by his next of kin.
recovery.
• When this case went to the High Court, the judge thought that
ii. The subject matter of the gift must have been the third critieria was not satisfied, ie delivery of subject matter,
delivered to the donee. as Hewett did not parted with the dominion over the house.
iii. The gift is made in circumstances which show that • Nonetheless, the judgment was reversed in the Court of Appeal.
the property is to revert to the donor should he
recover from his illness/impending death

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i. In contemplation of death

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

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 Wilkes v Allington [1931] 2 Ch 104 ii. Dominion over property must be
transferred to donee

• William Allington held a mortgage over the farm belonging to his

nieces and nephew. In 1922, he had been diagnosed with cancer and had
refused treatment. In 1928, he caught a chill which turned into
pneumonia and died.

• Issue, whether there was clear contemplation of death? • There must be an effective delivery of the gift to the
donee.
• Lord Tomlin: • the donor must be taken to have parted with
That the man believed himself to be in the shadow of death. I think it is
clear upon the evidence that he believed himself a doomed man. It did
dominion over the subject matter.
not matter that he in fact died from another cause, as in his own mid, he • By having a control over the property – an indication
still contemplated death. that the donor is already parted with the property

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Wooddard v Woodard [1991] Fatm Law

470

• Leanord Woodard was in hospital, suffering from

• He must have delivered the subject matter of the gift leukaemia, and while there, he allowed his son Barrie to
to the donee or transferred to him the means or part drive his car. Barrie already had the keys in his possession.
of the means of getting that subject matter, eg: Barrie visited his father and his father said, “You can keep
the keys, I won't be driving it anymore.” After his father’s
• delivering of keys, for instance a car key. death, Barrie claimed that he had been given the car, but
• delivering a key to a box containing the essential his mother disputed this.
indicia of title.
• COA : it was a donatio mortis causa and there was no need
for the donor to reacquire the car and redelivering again

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Re Lillingston [1952] 2 All ER 184

iii) Conditional on Death

• If the gift was to be reverted back to the

• The keys to a safety box at Harrods were handed over. donor in the event he recovers, the inference
To be allowed to open the box, the done would also is one of an imperfect inter vivos gift.
need signed authorization from the deposit holder • Once a gift made upon DMC has been revoked
and the password.
by the donor, the donee holds the subject
• matter as trustee for the donor
Held: There was sufficient delivery.
• Where the donee predeceases the donor, the
gift fails

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 King v Dubrey and others
Re Lilingston [1952] 2 All ER 184 [2014] EWHC 2083 (Ch)

• The claimant lived with and cared for his elderly aunt, J. After her
death, he contended that she had made a donatio mortis causa
it was held that the gift should be conditional, i.e. on the of the property to him. The 15th to 21st defendant charities, who
terms that, if the donor should not die, he should be were residual beneficiaries under J's will, contested the donatio
entitled to resume complete dominion of the property mortis causa.
the subject matter of the gift. • The Chancery Division held that, on the evidence, the donatio
mortis causa had been properly made and the property would
pass to the claimant.

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iii. Proprietary Estoppel iii. Elements under Proprietary Estoppel

i. the owner of the land assures the claimant that he

• Estoppel by encouragement or acquiescence will have some rights over the property,
• Where one party knowingly encourages another to act OR ii. the claimant must have had belief that he would
acquiesces in the other’s rights. receive interest in the property
iii. the claimant acted to his detriment.

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Effect of Proprietary Estoppel Pascoe v Turner [1979] WLR 431

• The claimant and defendant lived together in a house owned by

the claimant. They were not married but lived as if they were. In
1973 he met another woman and left the defendant. He told her
That party will be unable to complain later about the she could have the house but never formally transferred the
infringement and he may be required to make good of title. She remained in the house and spent money on
redecoration and improvements in the belief that she owned the
the expectation which he encourages in the other house. He was aware of her expenditure and belief but did
party. nothing to prevent either. In 1976 he brought an action seeking
to evict her. She entered a defence and counter claim.

• Held: The defendant could remain in the house and was entitled
to have the title transferred to her through proprietary estoppel.

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 Dillwyn v Llewellyn (1862) 31 LJ Ch 658

• A father placed one of his sons in possession of land belonging to

him, and at the same time signed a memorandum that he had
presented the land to the son so that the latter could build a dwelling THANK YOU
house on it.
• The son with the approval of the father, built at his own expense a
house on the land and resided there. On the father’s death, the son
sought a declaration that he was entitled for the said land.
• Held: This was not a mere incomplete gift of a life interest but it was
clear that the memorandum was to vest in the son the absolute
ownership of the estate. As the son had been put into possession and
incurred expenditure on the land, with the approbation of the father,
equity would intervene and perfect the imperfect gift.

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