Equity and Trust: Exceptions to the Principle of 'Equity Will Not Aid a Volunteer'

This article explores exceptions to the principle of 'equity will not aid a volunteer' in the context of gifts and trusts. It examines case laws such as Milroy vs. Lord, Re Fry, Re Rose, and Pennington vs. Waine to demonstrate how the principle has been accrued and extended. The article also discusses the requirements that must be fulfilled before a transfer of property can be considered valid.

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Founded on trust is a beneficiary is a volunteer except he has offered a valuable
consideration. In an instance a gift is created, the beneficiary would for all time be a volunteer
because it is by designation made with no reflection. In addition, the conventional reasonable
maxim holds that equity would not aid a volunteer. Therefore, a gift would not be perfected
through interpreting the donor of the specific gift as a trustee of the property in question. The
doctrine that equity would not aid a volunteer apparently confines the idea that in a situation
where an individual obtains a benefit for no consideration, then equity would not impose a
responsibility to ensure that the benefit is obtained1. This results in the context of gifts, to the
renowned principle where “equity will not perfect an imperfect gift”. In this regard, it appears
that a requirement that all the three aspects of valid gift be strictly fulfilled. In many situations,
the case law has offered exceptions to the sometimes onerous third requirement that gifts should
be delivered to the beneficiary of the gift2. In general, this implies that where a gift is made
imperfectly means that equity cannot allow the anticipated recipient to claim the specific gift
based on trust. Nonetheless, there are some exceptions to the principle. The paper will
investigate these exceptions plus the degree in which the principle has been accrued from “equity
will not assist a volunteer” to a point where “equity will not assist a volunteer” using case laws.
The primary case in this instance is Milroy vs. Lord in which a voluntary title deed that
alleged to allocate fifty company shares to Samuel Lord founded on trust for Milroy3. Lord was
1 Penner, J. The Law of Trusts, 9th editon (Oxford University Press 2014). P. 206.
2 Mitchell C. Hayton & Mitchell: Commentary and Cases on the Law of Trusts and Equitable Remedies,
13th edition (Sweet & Maxwell 2010). P. 81.
3 Milroy vs. Lord [1862] 4 De GF & J 264/45 ER 1145.

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an agent for Milroy founded on the authority of attorney and the requirements of the transfer of
the shares were not adhered to. Therefore, Milroy made the decision to create a trust that had
been affirmed. However, it was maintained that an unsuccessful transfer will not amount to
affirmation of trust in the absence of apparent purpose to generate trust. Additionally, in order
for the settlement to be regarded as valid, then the settler should have done everything that are
pertinent to be undertaken during the transfer of the property that will make the settlement
binding on him. Because shares had not been transferred in this instance, it means that no trust
was created; hence, no gift was made4. This particular case requires that for a resolution to be
obligatory, there must be either an absolute transfer, an affirmation of person as trustee, or a
transfer of particular assets to a third party as trustee. Accordingly, the presiding power
established by Turner L.J in Milroy vs. Lord created adequately precise principles concerning the
transfer of property. Thus, the absence of consideration in return for the settler’s pledge would
deem a beneficiary a “volunteer”, as well as equity would not aid a volunteer based on the
ground that it is biased nature will not impose a duty5. While firmly using the Milroy vs. Lord, it
is needed that trust could unquestionably fail the law, as well as in equity since shares were not
duly registered, where the shares were not even send to the firm6. The verdict of Re Fry long-
established that the doctrines that were established in Milroy were the donor had fulfilled all
legal requirements; however, had not adhered to extra formalities, that made the transfer of
shares to be incomplete at the law along with equity . In addition, Clarke L.J crafted the vastness
of his decision in Pennington on the evaluation of the donor’s intent, a hazardous strategy with a
4 Morris, J.,“Questions: when is an invalid gift a valid gift? When is an incompletely constituted trust a
completely constituted trust? Answer: after the decisions in Choithram and Pennington”, (2003) PCB 393.p.4.
5 Mitchell C.
6 Martin, J. Hanbury and Martin’s Modern Equity 19th (Sweet & Maxwell 2012). P. 132.

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classically blurring impact on a recognized principle. Because the Court of Appeal maintained
that the transfer of shares in Pennington case to be applicable, it could be fair to claim that the
verdict thus far weaken well developed power7. Therefore, the Milroy doctrine must only be
deemed “comparatively straightforward” because many exceptions have consequently occurred,
most persuasively in Strong vs. Bird, Re Rose, Rose vs. IRC, AND Choithram. 8
The verdict in Milroy case functioned to frustrate incomplete deals other than provide
effect to the donor’s intent and has attracted some criticism for challenging overarching doctrines
of justice along with fairness9. The narrow approach in this case has been commended by many
for creating a clear legal position regarding incomplete transfers of properties. The case too
heralds protection of requirements that provides donor’s several chances to change their
reasoning and make sure that they are certain regarding issues on their transaction. In Milroy
case, the court in Re Fry also assumed a restrictive approach and declined to affect a trust10. In
this instance, the settler presented the certificates of shares to the trustees; nonetheless, during
this period, the transfer of shares should have been permitted by the treasury. In the event the
settler died prior to receiving approval from the treasury. The repudiation of the court was
founded on the likelihood that the share transfer could have been discarded or additional
information could have been needed to validate the trust. The Court of Appeal was not willing to
7 Tham, C.H., “Careless share giving”, (2006) CONVPL 411.
8 T. Choithram vs. International SA vs. Pagarani [2001] 1 WLR 1
9 Halliwell, M. “Perfecting imperfect gifts and trusts: have we reached the end of the Chancellor’s foot?”,
(2003) Conv 192.
10 Milroy vs. Lord [1862] 4 De GF & J 264/45 ER 1145.

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overrule treasury’s involvement in meeting the entire requirement and was also not certain if the
deal could have been completed11.
In addition, the maxim that the settler should have undertaken that which is “essential” to
make up a legitimate trust was adequately used by the High Court in the case of Re Rose, Rose
vs. IRC. As a result, the High Court in this case maintained that transfer happened when the
specific transfer document was consented by the donor plus awarded to the done and not when
the title deed of the land was registered12. The validation in this case was that the donor was
believed to have done everything required under his authority to facilitate the transfer of the
property13. The resolution of the court received some censure. Nonetheless, the validation can be
obtained from the maxim where equity does what should be done; where the donor had already
fulfilled all that was needed to effectively build the trust, it was not within his powers14. Many
scholars appear to concur that the Turner L.J’s verdict was “restructured” by the novel limb of
trust creation that was pioneered in Re Rose. Hence, Lord Evershed too acknowledged that
unfairness of invalidating a gift previously the donor had undertaken all the requirements needed
of him. This case was to be interpreted as an exception of Milroy vs. Lord basically interpretating
Milroy in a deformed way to meet the trust principles. Hence, to claim that Re Rose perfected the
gift will be imprecise because no novel principles were read in to the current authority15.
11 Pearce R., Stevens, J. & Barr, W. The Law of Trusts and Equitable Obligations, 5th edition (Oxford
University Press 2011).p. 205.
12 Pennington vs. Waine [2002] ECWA Civ 227/[2002] 1 WLR 2075.
13 Morris, J. p.4.
14 Watt, G. Equity and Trusts, 6th edition (Oxford University Press 2014).p. 117.
15 Martin, J. 133

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Thus, the verdict in the Re Rose case primarily transformed equity’s strategy towards
imperfect deals. The resolution by the court relates the creation of trusts, where a trust is
constituted; the courts aid the beneficiaries through imposing their rights as long as they are a
volunteer16. This particular case demonstrates the principle that in situations where the donor has
fulfilled all the requirements regarding the transfer, they may transfer the title to a different
party; however, that absolute trust has not been concluded, a reasonable significance would have
passed, even when the done is a volunteer17. Consequently, this code is an exception to the
overall law that equity would not aid a volunteer, as well as is founded on the unfairness
breaking a promise on the pledge once the donor has alleged to transfer the title though meeting
all the requirements needed of him. Therefore, the principle of Re Rose has been lately extended.
Also, in T Choithram International SA vs. Pagarani, a many lying on his bed waiting his death
made the decision to proclaim an inter vivos trust on his assets. The settler’s intent was to be
among the 9 trustees; however, the man fallen short to transfer the lawful title deed to the other
trustees that led to an invalid trust not constituted based on ordinary law of trusts18. Hence, the
Court of Appeal made the decision that the man had neither successfully vested the property to
the other trustees, nor did his utterances amounted to a gift to make him one of the trustees19. In
addition, the High Court did not provide a generous creation in order to treat unsuccessful words
of absolute gift as talking effect if the man had declared himself trustees for the donee.
Consequently, the court made the verdict that the issues founded on “equity will not assist a
16 Pennington vs. Waine [2002] ECWA Civ 227/[2002] 1 WLR 2075.
17 Delany, H. & Ryan, D., “Unconscionability: a unifying theme in equity”, (2008) Conv 401.
18 T. Choithram vs. International SA vs. Pagarani [2001] 1 WLR 1
19 Watt, G.

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volunteer” or “perfect an imperfect gift”. Therefore, in the process of permitting the court’s
decision, the Privy Council endorsed the maxims; however, further declared that equity would
not endeavour overbearingly to overcome a gift. This interpretation for holding a trust was for
the reason that the settler had fulfilled all the requirements that create trust through declaring
himself as the trustee20.
It is clear that Re Rose case fashioned an exception to the code in Milroy, as well as read
Milroy to imply that whilst equity would not faultless a gift in which the donor had failed to meet
all the requirements under the provisions of the law to transfer the title of the property, it would
present effect to an endeavoured transfer if the donor had made all the requirements regarding
the transfer of the title. 21 The law only works in circumstances in which the actions of a third
party are essential to complete the transfer of a lawful title, which normally entails the transfer of
shares, but in previous cases had been used to in transfer of land along with leases. Thus, the
lawful possession of shares may only be moved by the registration of the transferee on the firm’s
share register22.
Nonetheless, this was not the conclusion of developments in the case laws, in Pennington
vs, Waine, the imperative requirements concerning the delivery were not fulfilled. Nevertheless,
the transfer was believed effectual in equity. Also, though there delivery was needed in Re Rose,
this does not imply that the prerequisite for the release may be bestowed within some conditions.
The verdict in Pennington case makes its nearly impractical for practitioners to confidently
20 Pearce R., Stevens, J. & Barr, W.
21 Milroy vs. Lord [1862] 4 De GF & J 264/45 ER 1145.
22 Stockwell, N. & Edwards, R. Trusts and Equity, 11th edition (Pearson 2013).p.78

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counsel customers making transfers of property to evade court actions to advice their customers
of they are compounded with an imperfect transfer of property. The Pennington case apparently
overextended the borders. This decision offers the courts with a broad discretion to perfect
imperfect deals where it represents a gift of Pennington that is potentially hazardous if not
subject to some restrictions23. As a result, it is rational to wrap up that Pennington case flags the
maxim in which equity would not help a volunteer through perfecting imperfect gifts.
Consequently, the present principles in this scenario demand many requirements to be fulfilled
before transfer of property that permits the potential donors to change their mind in different
phases during the transfer period. Also, it is tedious to permit courts a creative judgment on what
it considers to be unconscionable to conclude the efficiency of endeavoured transfers of
property24. The principle in Re Rose must be a received development in equity because it
cushions against the austerity of Milroy25. It is apparent that the different provided an impetus
resulting in Pennington26.
In conclusion, it is obvious that the principle in Re Rose “watered” the stringent approach
that was applied in Milroy case devoid of fashioning a realistic along with hypothetical problems
that emanated from Pennington. Equity’s position seems more equitable; however, absolutely
much more complex in its application. Therefore, it is clear that it is improbable that the maxim
may be argued to be refined to integrate the donor’s craziness, as the current stance seems to
leave room for aiding a volunteer where doing this way will rectify a donor’s craziness.
23 Pennington vs. Waine [2002] ECWA Civ 227/[2002] 1 WLR 2075.
24 Halliwell, M.
25 Milroy vs. Lord [1862] 4 De GF & J 264/45 ER 1145.
26 Pennington vs. Waine [2002] ECWA Civ 227/[2002] 1 WLR 2075.

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Certainly, Pennington case can well be overturned in the prospect; nonetheless, currently, the
most apt interpretation of the maxim is that equity would not aid a volunteer provided it will be
unconscionable not do to so27.
27 Garton, J.“The role of the trust mechanism in the rule in Re Rose”, (2003) Conv 364.

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Bibliography
Cases
Milroy vs. Lord [1862] 4 De GF & J 264/45 ER 1145.
Pennington vs. Waine [2002] ECWA Civ 227/[2002] 1 WLR 2075.
Re Rose, Rose vs. IRC [1952] Ch 499.
T. Choithram vs. International SA vs. Pagarani [2001] 1 WLR 1.
Texts
Martin, J. Hanbury and Martin’s Modern Equity 19th (Sweet & Maxwell 2012).
Mitchell C. Hayton & Mitchell: Commentary and Cases on the Law of Trusts and Equitable
Remedies, 13th edition (Sweet & Maxwell 2010).
Moffat G. Trusts Law, 5th. (Cambridge University Press 2009).
Pearce R., Stevens, J. & Barr, W. The Law of Trusts and Equitable Obligations, 5th edition
(Oxford University Press 2011).
Penner, J. The Law of Trusts, 9th editon (Oxford University Press 2014).
Stockwell, N. & Edwards, R. Trusts and Equity, 11th edition (Pearson 2013).
Watt, G. Equity and Trusts, 6th edition (Oxford University Press 2014).
Articles

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Delany, H. & Ryan, D., “Unconscionability: a unifying theme in equity”, (2008) Conv 401.
Garton, J.“The role of the trust mechanism in the rule in Re Rose”, (2003) Conv 364.
Halliwell, M. “Perfecting imperfect gifts and trusts: have we reached the end of the Chancellor’s
foot?”, (2003) Conv 192.
Morris, J.,“Questions: when is an invalid gift a valid gift? When is an incompletely constituted
trust a completely constituted trust? Answer: after the decisions in Choithram and
Pennington”, (2003) PCB 393.
Tham, C.H., “Careless share giving”, (2006) CONVPL 411.