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Equity & Trusts Assignment

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The maxim that equity will not perfect an imperfect will be discussed in this essay. To reach this conclusion, I will define the maxim and explore any concerns that may arise from its application in resolving conflicts + Letter

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  • February 3, 2025
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Equity and Trusts


Question 1:


The maxim that equity will not perfect an imperfect will be discussed in this essay. To
reach this conclusion, I will define the maxim and explore any concerns that may
arise from its application in resolving conflicts.


To begin, what is equity? Equity is a branch of law, which serves to mitigate the
strictness of the common law1. Before the Judicature Act 1873-752 came into force,
equity was applied and demonstrated by the Court of Chancery. However, the JA
(1873) established the Supreme Court of Judicature with concurrent jurisdiction to
administer the rules of equity and law in one procedural system. In the event of
conflict, equity will prevail over common law. “In all matters… where there is any
conflict… between the rules of equity… and common law… the rules of equity will
apply3”.


Over time, equity has established various ‘maxims’ or sayings, which set out the core
principles that govern the law of equity. These are not strict rules and the courts do
not always follow them. They act as more of a general approach. One being, “he
who comes to equity must come with clean hands”, this implies that in order to be
granted discretionary relief, applicant must have not acted improperly 4. Another
being, “equity will not perfect an imperfect gift”. This maxim was created by ‘Milroy v
Lord (1862)5’. It was recognised because it relates to a legal area that deals with the
transfer of a gift. This maxim means that in order for the trust 6 (can be real or
personality property, land, money shares etc.) to be lawful, the settlor (the person
who creates the trust) must do all that is necessary to transfer legal title to the
trustees (holds the legal title of the trust property) for it to be valid 7. This can be seen


1
Boluwatife Ehimony, 'Maxims of Equity: Everything You Need to Know ' (DJetLawyer, 2021)
<https://djetlawyer.com/maxims-of-equity-everything-you-need-to-know/> accessed 1 January 2022
2
The Judicature Acts of 1873 and 1875
3
Supreme Court of Judicature Act 1873, s 25(11)
4
Coatsworth v Johnson (1886) 54 LT 520
5
Milroy v Lord (1862) EWHC J78
6
Barbara gardener, 'Trust creation – What is an express trust?' (Personal Finance Society, 19 August 2021)
<https://www.thepfs.org/news-index/articles/trust-creation-what-is-an-express-trust/101046> accessed 1 January
2022
7
Oxfordreferencecom, 'Maxims of Equity' (Oxford Reference, 2021)
<https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100141673> accessed 1 January 2022

, Equity and Trusts


in ‘Re Fry (1946)8’ where the gift was incomplete as the doner had not done
everything that was required to be done by him before his death 9. This principle
stayed the same for many years until the case of 'Pennington v Waine (2002) 10‘
arose. This case concluded that “equity will perfect an imperfect gift” because it
would have been unconscionable for the donor to have refused to transfer those
shares to the trustee. “Equity has tempered the wind (of the principle that equity will
not assist a volunteer) to the shorn lamb (the donee) by utilising the constructive
trust11” – per Arden LJ12. However, one issue with this case is that it did not establish
principles illustrating the circumstances in which a doner would be immoral in
recalling an imperfect gift. Each case has its own set of facts, meaning that one
judge's interpretation of the facts will be a significant component in determining
whether it would be unethical not to be a perfect gift, while another judge may
disagree, making this legislation uncertain 13.


An ‘Inter Vivos Trust14’ is a trust established during a person’s lifetime (also known
as a ‘lifetime trust’). This is important because this type of trust was intended to be
made in the case of ‘Strong v Bird (1874)15’. However, was unable to do so due to
the circumstances. The court granted equitable support to a volunteer. This is
because if a deceased person planned to make a gift of property to another person
but never made a complete gift of it, the gift is declared completed. In the case of ‘Re
Gonin (1952)16’ it is suggested that the donor should have had the same intention
until death, and by changing her mind and selling a portion of the land, she still
considered herself the owner. Other criteria that have not yet been defined in case
law and could be considered flaws include the donee receiving letters of
administration to become the representative of the deceased, the proposed gift

8
Re Fry (1946) 5 WLUK 27
9
Simplestudyingcom, 'Re Fry (deceased) [1946] Ch 312' (Simple
Studying, 2021) <https://simplestudying.com/re-fry-deceased-1946-ch-312/> accessed 1 January 2022
10
Pennington v Waine EWCA Civ 227
11
Lawprofco, 'Pennington v Waine [2002] 1 WLR 2075' (Lawprofco, 2021) <https://lawprof.co/trust/imperfect-gift-
cases/pennington-v-waine-2002-1-wlr-2075/> accessed 1 January 2022
12
Lawprofco, 'Pennington v Waine [2002] 1 WLR 2075' (Lawprofco, 2021) <https://lawprof.co/trust/imperfect-gift-
cases/pennington-v-waine-2002-1-wlr-2075/> accessed 1 January 2022
13
Charlie Webb, The Myth of the Remedial Constructive Trust textbook, Current Legal Problems, Volume 69,
Issue 1, 2016, Pages 353–376, https://doi.org/10.1093/clp/cuw013 - date published 16th November 2016
14
Librarycronericouk, '32 Inter-vivos and will trusts' (Navigate, 2021)
<https://library.croneri.co.uk/cch_uk/wfpt/3-2> accessed 1 January 2022
15
Strong v Bird (1874) LR 18 Eq 315
16
Re Rose (1952) CH 499

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