This is a full exam answer, focusing on the topic of constitution which is highly examinable. I memorised this essay and wrote it in my exam which I got a First Class grade, as this answer contains lots of bonuses, articles and quotations. This essay can definitely help you in scoring, GUARANTEED!
‘Equity will not perfect an imperfect gift’ was illustrated in Milroy v Lord
as a strict rule that apply to law related to the transfer of gift for many years.
Yet, this rigid requirement had been significantly nrelaxed after Pennington v
Waine. This essay will evaluate the significance and the changes introduced by
Pennington./ equity was introduced to avoid the rigid legal rules./ the fact that
legal rules can be modified by equity/ exceptions to the maxims.
Taking every necessary step to transfer property
The general rule in Milroy v Lord states, if settlor (S) has not done
everything necessary to effect transfer, equity will not construe an imperfect
gift (failed transfer) as a declaration of trust. The rule has been strictly applied
in Richards v Delbridge and Re Fry where the intended trust failed as the S had
not made every effort to comply with the steps.
‘Equity will not perfect an imperfect gift’ was justified in Jones v Lock, as
the S has shown the intention to give the property away absolutely and has
evinced no intention to retain the legal estate on trust for the intended
beneficiary.
Milroy’s harshness had been relaxed since Re Rose – it would suffice for
equity to intervene if the S had done everything in his power to effect transfer
despite short of registration. Here, the Court of Appeal (COA) managed to
deviate from Milroy without creating any theoretical or practical problems. In
this sense, equity struck a welcome balance between fairness and certainty, as
well as convenience for legal practitioners.
The Rose principle was applied in Mascall v Mascall where trust arose at
the time the S placed the recipient in a position where they can take final steps
to receive the property, despite they had not done so. This shows that the
Rose principle binds the S once it takes effect, even if they want to withdraw
from the transfer.
A major extension: Pennington v Waine
However, this is not the end of the developments. Pennington has
sought to rationalise Re Rose under the single umbrella on unconscionability:
the trust will arise earlier (before the last step) if a transfer reaches a point
when it would be unconscionable for the S to withdraw.
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