RE Rose and Pennington CONSTITUTION (2)

It is only when the property in question really enters the hands of the trustee
which the trust may be said to have been founded or created and to make a
gift, one can either directly transfer ownership to the done , assign ownership
to a trustee to keep in trust, or declare one's own trust over the property of the
donee, as specified by turner lj in Milroy versus lord.
The successful transfer of trust property may be contingent upon meeting
specific requirements, which vary depending on the type of trust property in
question and in cases where a trust or personal property is implicated and the
transfer of legal title can be effectuated through the issuance of a deed or
delivery of possession and section 52 of the law of property act of 1925 is
relevant in situations involving unregistered land by deed. Further the
regulation of registered property falls under the purview of the property
registration act of 2002 and the management of privately owned company
shares is determined by their inclusion in the companies’ register of members
which established in the legal precedent of Milroy v Lord. In the case of publicly
listed companies, the transfer of shares can be executed through a legal
electronic transfer process.
In situations where the settlor declares an intention to establish a gift or trust,
and fail to effectuate vesting such gift or trust may be deemed to be deficiently
constituted and before mentioned statement has the potential to be legally
binding upon the settlor through the issuance of a specific performance order
or a monetary judgement and provided that the intended beneficiary has
provided valuable consideration and As per the equity principle established in
the legal case of attorney general versus jacobs smith, it is required that either
the Trustee or the beneficiary must furnish valuable consideration in
accordance with the common law, the beneficiary must position themselves
within the ambit of marriage consideration. In cases where a trust is
improperly established and the legal principle of equity dictates that a
volunteer beneficiary is not entitled to the remedy of specific performance and
this is in accordance with the well-known adage that equity does not aid a
volunteer. In some examples, Equity has relaxed its criteria and deemed a trust
to be valid despite the settlor retaining partial legal ownership and not fully
transferring it to the trustee.
The legal principal established in the landmark case re rose and mascall versus
mascall where the transfer of ownership to a trustee or donee is considered
fully executed in equity if the settlor or donor has completed all necessary
steps to transfer the legal title to the transferee and also these mentioned cases
have established that courts are now able to uphold trusts and gifts made in
favour of volunteers, and even in situations where the trustee or donor has not
yet got the legal title to the property. The cases which we have mentioned above
have led to a modification of the strict interpretation of milroy versus lord, that
stipulates that any action apart from transfer of legal possession is not
enough. It appears that in case of re rose and mascall versus mascall, the
settlor or donor has completed all requisite procedures thus leaving the trustee
and a third party to undertake any remaining actions that can be necessary to
effectuate the transfer.
The court of appeal in the matter of re rose established the date of execution of
the deed held significance, the settlor took all necessary measures at that point
to divest himself of the property by executing the document : delivering it to the
transferees. The only extra requirement was the official registration of the third
party ant the principle of re rose is non applicable in cases where the settlor or
donor has not completely executed all necessary actions which was shown in
the re fry case.
The Re Rose criteria was subjected to vibrant examination in the case of
pennington versus waine where the ruling in this instance determined that an
ineffective transfer may be upheld in equity if it would be unjust for the
transferor to retract their decision and the pennington versus waine ruling
established that the beneficiaries of a trust or recipients of a gift may enforce a
commitment if the trust's settlor or donor has not completed the necessary
actions to transfer legal ownership.
Arden lj said that the crucial factor was unconscionability that says that a
donor would be considered to be excluded from making a change in their
decision if such an action is considered to be not just to other donors and the
determination of the unreasonableness of a donor's conversion of mind should
necessarily be on a detailed evaluation of all related factors because there
exists no all covering catalogue of such factors and in situations where the
transferor's change/conversion of mind is considered " unconscionable " a
noneffectual transfer will be en forced in equity showing a significant departure
from milroy's view. As seen Equity will not provide assistance to a volunteer
unless it becomes in tolerable not to do so.
Further application of Pennington v Waine has been not very frequent in the
years after the verdict. The Court of Appeal in the case of zeital versus kaye
deviated from court's first decision that a transfer took place despite purported
transferor's failure to carry out all required processes and the deceased
individual's attempt to transfer the shares were considered to be enough and
due to the fact that he was not the registered owner of the shares he was
incapable of executing a transfer as he only held beneficial ownership and the
individual who passed away had not fulfilled all the requisite procedures to
conclude the transfer of shares and due to the fact that the share certificates
were being retained by the company and not yet delivered there was no
contention regarding the donor's inability to transfer the certificates to the
donee in Pennington. The shah vs shah ruling said that considering additional
factors is unnecessary, as a written communication stating "I am as of today
holding 4000 shares in the aforesaid firm for you" was to constitute a
declaration of trust.
The legal principal set in pennington versus waine states equity cannot aid a
volunteer. There is exception of a specific situation to this principal and the
legal decision in question may be deemed as a complex matter that resulted in
non-satisfactory precedent. Foremost it wrongly understood the wisdom that
equity won't interfere to make a poor gift good or help a volunteer and the
intention of donor to make an immediate contribution does not necessarily
imply that contribution was actually made and despite the application of
various measures to create the transfer , the existing regulations allow the
transferor to take back there decision and secondly it has been criticised for
making ambiguity regarding whether non perfect bestowal of the fruitful
interest would be taken as a non-successful unconditionel bestowel the
assessment made by the court in relation to the ethical acceptability of the
transferee's decision to revoke the transfer should not serve as the criteria for
assessing the effectiveness of an allegedly property transfer. The decision of the
court evilved in a substantial level of ambiguity within the law and it is likely
that the many erroneous transactions will be presented to the court and
individuals may put it into contention that anything less than perfect would be
considered morally in acceptable and the application of the unconscionability
test gives rise to ambiguity regarding the allocation of the beneficial entitlement
which can be called a pre condition for many purposes such as taxation etc .
And if we contend against the notion that the court has granted itself
unlimited/limitless authority to enforce ineffective transactions while
restraining from doing so would be unconscionable and presents particular
difficult ultimatum. Also the present case can be differentiated from the legal
precedent of choithram versus pagarani noted by arden l. j. during the
analysis. Ld browne-wilkinson's ruling in the pagarani case set it clearly that it
would be deemed to be unconscionable for a settlor to track back from his
declaration of trust subsequent to having done so while serving as a trustee,
regardless of the fact that they were the sole trustee or one of many trustees
and in comparison to pennington versus waine involved a scenario where the
donor did not create a trust, make a donation, or make a reasonable effort to
do so.
And if we consider that the facts been changed, harold could have emerged
victorious in the legal dispute of pennington v waine where the act of
consenting to serve as a director on the form could potentially be interpreted
through the lens of proprietary estoppel and harold had taken an unfavourable
action based on the assertion that the necessary qualifying shares were being
transferred to him. And the Court of Appeal did not refer to the legal doctrine
under discussion i.e. estoppel.
Another is Strong versus Bird case that identifies an additional five scenarios
in which equity may provide assistance to a volunteer which include instances
where an incomplete gift was bestowed by the donor while alive and the donee
was appointed as the executor or administrator. Re Ralli Wills Trusts case
established that a trust can be deemed fully constituted in the event that the
trustee inadvertently obtains legal ownership of the trust assets and the other
is Choithram versus Pagarani case where it was mandated by the trust that a
trustee who was part of a larger group of trustees with ownership of trust
property transfer said property into the names of all trustees. There is legal
concept of Donatio mortis causa that refers to a donation made by an
individual who is anticipating death which is an additional circumstance in
which equity would provide assistance to a volunteer. The before quoted
scenario can be exemplified by the legal case of Vallee versus Birchwood and in
specific cases of proprietary estoppel the court may rectify an incomplete
transfer of property to enforce the claimant's "minimal equity" and uphold the
claim.

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