Exceptions to “equity will not assist a volunteer” - what are they? Are they appropriate
‘Although equity will not aid a volunteer, it will not strive officiously to defeat a gift.’ (T Choithram
International SA v Pagarani (2001) per Lord Browne Wilkinson)
Introduction
In order to make a perfect gift, the donor must transfer the property in the correct manner to the
donee. The general rules/maxims are ‘equity will not protect an imperfect gift’ and ‘equity will not
assist a volunteer; (Milroy v Lord). This means that equity will not ensure that someone
receives a benefit for no consideration by imposing obligations on the donor. This ensures the
donor demonstrates a clear intention. Simply stating they wish to give a gift is not enough.
● Benefits of the general rule:
● Prevents donor/settlor changing their mind
● Ensures fiduciary obligations aren’t imposed on trustees without thought. Evidence to
create a trust necessary. If a failed gift could easily be reinterpreted as a declaration of
trust then trusts could be imposed all the time even if this had not been the intention of
the person making the gift.
● No good reason to assist a volunteer in imposing a trust where a gift has failed, as no
consideration given
● Certainty is maintained.
There are exceptions to this maxim:
Main body
Exceptions (might not ask for this one)
1. Rule in Strong v Bird
on the death of a donor, the donee can claim legal title if following conditions are satisfied:
● Transfer fails due to not satisfying formalities
● The Intention must be to make immediate gift by the donor (Re freeland)
● The intention continues until death (Re Gonin) and
● Donee becomes executor/R/Administrator of donor
Every effort test (Re Rose)
the gift is complete in equity if the donor has done everything necessary to transfer the property
but there is an outstanding step to be taken by a third party, so essentially the donor has made
‘evey effort.’ Donor must have put the property beyond his recall. The transfer of legal title to
company shares is not complete until the transferred is registered by the company. In Re Rose
Mr Rose executed the proper method of transfer of company shares but died midway through
so it was held that the gift was complete in equity. Another example would be a gift of the legal
estate in land which is not effective until the transferee is registered at the Land Registry.
● In Mascall v Mascall a father had executed a transfer deed of land in favour of his son.
The father handed the deed to his son but then changed his mind. It was held that it was
too late for the father to change his mind because he had done everything he had to do
to transfer title and the only remaining step was for the son to get himself registered.
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