Exceptions to Maxim of Equity

There are certain known exemptions to the rule that equity will not assist a volunteer.

a) These are where the proposed donee has acquired title to the property by being chosen as administrator of the donor’s estate. That is if a donor has endeavored to create an instant bequest inter vivos to a donee which have not passed by reasons of the fact that the lawful formalities required for the exact transfer of title to the particular belongings in inquiry have not been complied with, then if the donee has after that become the executor or administrator of the donor, the gift is considered to have been perfect.

This was the authority in Strong v Bird a solo executor had rented a sum of hard cash from his stepmother intended that it should be paid back by an adjustment of rent payable. At the time of death, an amount of £900 was still in arrears and the next of kin alleged the balance of the debt . However because the beneficiary had been appointed an executor it was held that the arrears relieved at that point.

b) Donatio mortis causa could also be argued as another situation where equity assists a volunteer . This is where a bequest is made by proof of the anticipation of death but is conditional upon that death. These types of gifts are basically death bed gifts made in contemplation of death upon the death of a donor with some form of delivery of the subject matter of the gift . Where the intended gift is defective but was given as an interim measure in contemplation of death . An illustration of this, is where a man desires his mistress to benefit upon his death but does not aspired to reveal her existence until either by making a will in her favour or by transferring a property while he is still alive .

In the case of personal property generally a donee’s title is inclusive upon the donor’s death and no more acts are being required. Where the subject matter is land the donee’s title is not absolute by the time the donor dies as the legitimate title vests in the donor's special representatives . Therefore the donee can ask for the assistance of the courts to force the personal representatives to do whatsoever is obligatory to perfect the donee's title and this is one of the minorities of exceptions to the equitable maxim that equity will not assist a volunteer . The case of Sen v Headley is an illustration of this principle where it was held that the delivery of the title deeds reserved in the harden box, the key to which had been given by X to Y during her visits to the hospital throughout X’s ill health amounted to X’s parting with control over the house.

c) An additional situation that could be seen as an exemption to the rule that equity will not assist a volunteer is proprietary estoppel .This is where because of the donee’s detrimental dependence on the donor’s promise, it would be unconscionable to permit the donor to decline to carry out his promise . For instance, in Dillwyn v Llewelyn a father ask for his son to reside on the land and signed an instrument of transfer to him, which was later turned out to be unsuccessful . In reliance to this the son spends money on the property by erecting a house on the land .After the death of his father he required a statement that he is the equitable holder of the land and that the title being conveyed to him . In this case the court held that where the donor give confidence or permits the donee to act to his loss in reliance of the donor’s promise in circumstances where it would be unconscionable for the donor to refute the donee's right, then a claim of proprietary estoppel is ascertain in favour of the donee .

d) Another exclusion to the maxim that equity will not assist a volunteer is contained in Re Rose . In this case the Court of Appeal held that a bequest turn out to be perfect at the time the donor does everything contained within his authority to perfect that, even though all that is essential by law to complete the transfer is undone . In that case the donor had correctly carry out a share transfer form and delivered it with the right share certificate to the donee . Though the legal title to the shares did not pass until the donee registered the transfer with the company the court held that the gift is valid .

e) Pennington v Wain is another case whereby equity had aided a volunteer. This is where the donor need not even have to do all that is essential to perfect the bequest what matters is whether it would be unconscionable for him to resile from his bequest . This was the principle in Pennington v Wain where on the facts of the case it was said to be unconscionable for the donor to resile as she had informed the donee that the bequest was perfect . Thus it was held that it will be unconscionable for the donor to have recollected what was obviously projected as a bequest, as a donor will not be allowed to alter his intention if it was unconscionable to do so . It seems that in this case in order for the bequest not to be crushed officiously the courts will assist a volunteer even though this would mean that equity is neither looking at the substance nor the form .

f) A further exception is pertaining to accidents . Equity will ease against accident where a volunteer has an authority which he needs to utilize and does as much as he can to exercise but is frustrated by circumstances from using it in due form . The case of Montague v Bath is an example of the principle where the Court said that if a person has a power which may only be exercised in face of four Privy Councilors and the principals sent him to Jamaica where there are no Privy Councilors equity will allow the person to exercise the power casually even though he is a volunteer

g) Furthermore one other remarkable example is the case of the formation of trust . A fully completed trust or a resulting trust can be enforced by a volunteer . The case of Corin v Patton, demonstrates this principle. In that case the respondent and his wife owned a property as joint tenants in New South Wales. Before the wife died, she tried to sever the join-tenancy to benefit her children. She executed a transfer to the first appellant, her brother. By the deed of transfer the brother declared he held an interest in land as tenant-in common with Mr. Paton upon trust for Mrs. Paton. The transfer was not registered even at the time of the wife’s death.

The Court of Appeal dismissed the appeal and upheld the trial judge’s decision. It was held that “a unilateral declaration of intention or other act inconsistent with the continuation of a joint-tenancy does not suffice to affect a severance of a joint-tenancy.” In this case Mr. Paterson recoup the property by way of resulting trust . Though there was no valuable consideration provided by him equity will still implement the trust nevertheless .

h) Finally the last exemplar of the operation of the maxim is when a volunteer decline to do so would be against the conscience of the defendant who would be taking advantage of his own wrong . The case of Gilbert’s Lex Pretoria illustrates this where the plaintiff drew up the agreement in his own hand and procured B to sign it . Here equity may assist a volunteer when such kinds of circumstance emerged .

BIBLIOGRAPHY

  • Cases Corin v Patton (1990) 1169 CLR 540, 557.
  • Dillwyn v Llewelyn (1862) 4 De GF & J 517.
  • Gilbert’s Lex Pretoria (1817) CH 342.
  • Montague v Bath (1693) 3 Ch 55 22 ER 963.
  • Pennington v Waine [2002] 4 All ER 215.
  • Re Rose [1952] 1 All ER Ch 1217.
  • Sen v Headley [1991] 2 All ER 636.
  • Strong v Bird (1874) LR 18 Eq 315. Texts Bob Hughes, `The Exception is the Rule: Donatio Motis Causa’ (2003) 7 Journal of South Pacific Law http://www.paclii.org/journals/fJSPL/vol07no2/2.shtml (Accessed 20/05/11).
  • Richard Edwards & Nigel Stockwell, Trust and Equity (9th ed, 2009) Longman, London, England.
  • Robert A. Hughes, Trust Law in the South Pacific (1999) USP, Suva, Fiji.