Analysis of Strong v Bird and its Impact on Trust Formation (LA6022)

This coursework analyzes the landmark case of Strong v Bird [1874] LR 18 Eq 315, focusing on its implications within the realms of equity, trusts, and property law. The essay explores the case's exception to the maxim "Equity will not assist a volunteer," examining the circumstances surrounding the donatio mortis causa and the rule established. It discusses the facts of the case, the judgment, and the role of the executor in perfecting an imperfect gift. The analysis delves into the conditions required for the application of the rule, its relationship with the concept of donatio mortis causa, and its exceptions to the general rules regarding the formation of trusts, as well as its relationship to the maxim of equity. The essay also references and contrasts the case with Milroy v Lord [1862] EWHC J78 and other relevant legal principles and authorities, providing a comprehensive understanding of the case's significance in legal practice. The essay also examines the nature of donatio mortis causa, its exceptional character, and its place within the framework of voluntary transactions and the role of equity in common law.

Summative Coursework

Introduction
Strong v Bird [1874] LR 18 Eq 315 is a property related case. This case is an exception to the
maxim “Equity will not assist a volunteer”. The facts related to the case were that Bird
rented £1,100 from his stepmother who was paying him rent for living with him. Both of
them agreed for the refund of the loan by reduction in rent till the settlement of loan. The rent
was paid by his stepmother only twice and afterwards, she paid full rent until she died. She
selected Bird as her executor and her relative approached him for recovery of debt after her
death. The stepmother of Bird stopped paying rent as she pad the entire rent but, it could not
discharge Bird from his liability to pay the debt. However, the conduct of his stepmother
displayed no consideration for release of debt as well. The issue in the case was whether Bird
had to reimburse the loan or not.1 The judgment was that the selection of Bird as the executor
proved the loan to Bird as a gift by his stepmother because the executor is considered as a
person responsible for dealing with the debt matters related to the property of the testator, so
it could not be possible to sue him or herself for the debt.2 Thus, common law judgments
cancelled the debt in order to avoid such an abnormality. Above that, it was also proved that
the intention of stepmother had continued till she died as she paid full rent during her last
time.
The paper will discuss that to how much extent the donatio mortis causa and the rule in the
case is to create exceptions to general rules regarding formation of trusts as well as to assess
their relationships with the maxim “equity will not assist a volunteer”.
1 Colin, "Strong V Bird", Thedailyfili.Blogspot.Com, 2015
<http://thedailyfili.blogspot.com/2015/07/strong-v-bird.html> [Accessed 5 February 2019].
2 Billy Sexton, "Equity & Trusts – Formalities", Allaboutlaw.Co.Uk, 2016
<https://www.allaboutlaw.co.uk/stage/study-help/equity-trusts-formalities> [Accessed 5 February
2019].

Discussion
Donatio mortis causa refers to a gift given by a person during his last moments of life before
death, with an intention that in the situation of his/her death, the gift will be kept in the
possession of donee.3 However, such a gift is discharged from the property of the dead person
because it does not belongs to them at the time of death as it is considered to have been
transferred retroactively as soon as it was gifted. There are a number of jurisdictions in
which, real property could not be transferred by such death-bed gifts.4 Taking into
consideration, the nature of donatio mortis causa, such a gift resembles a donation wherein, it
is not complete during the life period of donor and thus it is considered as revocable by the
donor regarding his/her debts upon the lack of possessions. However, the procedures in such
a kind of gift do not require the executor of the donor to prove the gift at perfect even if it is
imperfect. In order to establish a good donatio mortis causa, following circumstances are
essential;
 The gift of personal property such as a bond, bank currency, cheque accessible for
payment during life period of donor is taken into consideration
 The gift by donor in risk of death and comes into effect only after the death of
donor
 Actual delivery of gift to donee but such delivery could be made to third person to
be used by donee.
It is obvious that following case law has required being off from such norm by presenting
various exceptions that could allow incomplete gifts to be perfect for donee. However,
various criticisms and debate have occurred regarding this area of law, it has also been
3 Legal Causa, "Legal Definition Of Donatio Mortis Causa", Upcounsel, 2019
<https://www.upcounsel.com/legal-def-donatio-mortis-causa> [Accessed 5 February 2019].
4 Duhaime's Law Dictionary, "Donatio Mortis Causa Definition", Duhaime.Org, 2019
<http://www.duhaime.org/LegalDictionary/D/DonatioMortisCausa.aspx> [Accessed 5 February
2019].

realized that the scope for the exceptions has increased. On the other hand, it has also been
argued that it could be inacceptable to the parties for the gift not to be perfected.
Even so, the fact that the exceptions are predictable will continue and would create a topic for
criticisms and debate. In case of Milroy v Lord [1862] EWHC J78, it was held by the court
that trusts should not be utilized as guarding the gifts and followed the maxim of equity i.e.
“Equity will not assist a volunteer”. The judge stated that equity could not assist the
volunteer to perfect a gift which is already imperfect. The court placed three modes of
offering a gift which were transfer on trust, absolute transfer and self-declaration of trust. The
gift given through transfer of trust and absolute transfer are considered as imperfect because
the legal formalities in such a transfer are not satisfactory due to which, the property could
not belong to the donee legally. On the other hand, there is no requirement of constitution in
case of self-declaration of the trust because the rights are already vested in the intended
trustee or donee. The trust is constituted perfectly in this mode after the declaration is made
as the rights are held by the intended tustee.5
Strong v Bird is of huge significance in the situations where donor offers an imperfect gift
during lifetime and donee is afterwards selected as the executor of donor, so the gift becomes
perfect as the donee receives legal entitlement to the property of the donor which includes the
relevance of the intended gift, in the authority of the donor as an executor or administrator.
There are four conditions through which this rule could be pertinent in this case and these are; There must be the intent of the donor to make an inter vivos gift i.e. arises in a
subsequent condition The donative intention of the donor must persist till his/her death The donee must be selected as the executor or administrator of the donor The relevance of intended gift must have been continuing till the death of donor.
5 Gareth Evans, "Constitution and formalities of a trust", Digestiblenotes.Com, 2018
<https://digestiblenotes.com/law/trusts/constitution_and_formalities.php> [Accessed 5 February
2019].

According to Blackstone, in the process of transaction in donatio mortis causa, a person
during his/her last sickness apprehends his/her dissolution, transfers the ownership of
private possessions to donee to maintain in case of his/her death. The judgment in Strong v.
Bird is an exception to the general proposition rule. Such a gift is recognised by the
authorities to be an inconsistent notion in various ways. In Re Beaumont; Beaumont v
Ewbank, such gifts were considered to be having amphibious nature. These types of
transactions are similar anomalous to trust in common law system such as donatio mortis
causa have always been considered as exceptional.6 The main issue arises when the
traditional distaste of equity for the acknowledgement and execution of gifts contrasted with
trusts even entirely voluntary transactions, which becomes difficult to understand.
The exceptional features of donatio mortis causa are that it acts as an exception to the
condition that the gifts that comes in effect on the death of donor, must obey the legal
requirements similar to a valid will imposed under the Wills Act.7 However, it is a gift that
comes into effect inter vivos provisional on death; so, it is not suitably a transaction i.e.
testamentary. On the other hand, it assumes some of the features of a testamentary character
which could be revocable any time earlier to the death of the donor similar to the will. Thus,
the nature of donatio mortis causa could conventionally be expressed as that of peculiar
type of gift that exist between the inter vivos gifts as well as testamentary gifts. The
exceptional character of donatio mortis causa arises within equity itself which imposes
limitations on the acknowledgement and application of voluntary transactions except if there
is equitable reason behind it.8 It is a maxim that the equity will not assist a volunteer to
6 Life of a London Law Student, "Constitution Of Trusts", Life Of A London Law Student, 2015
<https://lifeofalondonlawstudent.com/constitution-of-trusts/> [Accessed 5 February 2019].
7 Oxfordindex, "Rule In Strong V Bird - Oi", Oxfordindex.Oup.Com, 2019
<http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100433288> [Accessed 5 February
2019].
8 Oxfordreference, "Rule In Strong V Bird - Oxford Reference", Oxfordreference.Com, 2019
<http://www.oxfordreference.com/view/10.1093/oi/authority.20110803100433288> [Accessed 5
February 2019].

perfect an imperfect gift. It is clearly evident that a donatio mortis causa may in fact be
imposed by the volunteer or the donee and the courts of equity could impose it. There are
various exceptions in equity to the rule against supporting the volunteers which itself
emerge to be anomalous. In Morris v Handley, the Supreme Court of NSW stated seven
exceptions which also included donatio mortis causa. It might be a question in number of
cases if there is any imperfection specifically under donatio mortis causa. If the property
which is subjected to transaction is in the hands of recipient conditionally i.e. when the
transaction subjected to the condition following (death of donor) for the purpose to be
fulfilled, then the title gets completed just after the death of the donor. This in itself is
enough to implement it against any entitlement by the legal representative.9
In some situations, the method of assigning the gift might itself be regarded as incomplete
as the donor might not have completed all the legal procedures in his/her power to complete
the procedure of gift in conformity with common legal regulations associated with the
separation of property which is subjected as gift to other person.10 In such a situation as the
gift is ultimately to be transferred to the volunteer even if it is imperfect, it does not make
any sense. It has been implied by the maxim itself that the general position of equity related
to the voluntary assignments is stringent but for gifts of equitable property, it is not as strict
as assign ability is primarily a matter of intention such as for beneficial trust interests,
writing process is essential. However, in case of gift of legal property as in Milroy v. Lord, it
becomes essential to determine the efficiency of the supposed assignment in
equity.11donatio mortis causa is similar to equity and the reason behind it is its suitability
into transaction category where there is sufficient equity in order to validate its application
9 LLC Revolvy, ""Strong V Bird" On Revolvy.Com", Revolvy.Com, 2019
<https://www.revolvy.com/page/Strong-v-Bird> [Accessed 5 February 2019].
10 Robert A Pearce and Warren Barr, Pearce & Stevens' Trusts And Equitable Obligations
(Oxford University Press, 2015), p. 28.
11 Robert A Pearce and Warren Barr, Pearce & Stevens' Trusts And Equitable Obligations
(Oxford University Press, 2015), p. 28.

against other legal applicants to the entitlement. After taking into consideration the case of
Milroy v. Lord, it can be clearly stated that donatio mortis causa is perhaps an exceptional
voluntary transaction similar to that of a trust.12 The donatio mortis causa has always played
an exceptional character considering that it functions as an exception to the formal legal
values which include those belonging to gifts of both nature inter vivos or by will. In
common law system, equity has been imposing the transactions wherever the needs of
general equity, justice as well as good conscience are demanded. Similar role has been
played by donatio mortis causa in the case of Strong v. Bird where the done was made the
executor by the donor before she died and the court cancelled the debt remnant over donee
as he himself was the executor to that property and the rule of donatio mortis causa was
implemented.
Conclusion
After the analysis of the case and the related rules and exceptions applied to this case, it has
been realized that the donatio mortis causa was used as an exemption to the general rules
regarding formation of trusts in this case because executor of the property whose
responsibility is to deal with all the matters related to the debts, cannot sue himself/herself for
not paying the dues as he possess all the rights over the property after the death of the donor.
It has been proved that the exceptional character of donatio mortis causa arises within equity
as it imposes various limitations on voluntary transactions except if there is equitable reason
behind it. The equity cannot assist a volunteer means that equity will not perfect an imperfect
gift; however, it was clearly evident that a donatio mortis causa might be imposed by the
volunteer or the donee and the courts of equity could implement it. So, all are interrelated to
each other.
12 Robert A Pearce, John Stevens and Warren Barr, The Law Of Trusts And Equitable
Obligations, (Oxford: Oxford University Press, 2010), p. 3.

References
Causa, Legal, "Legal Definition of Donatio Mortis Causa", Upcounsel, 2019
<https://www.upcounsel.com/legal-def-donatio-mortis-causa> [Accessed 5 February
2019]
Colin, "Strong V Bird", Thedailyfili.Blogspot.Com, 2015
<http://thedailyfili.blogspot.com/2015/07/strong-v-bird.html> [Accessed 5 February
2019]
Duhaime's Law Dictionary, "Donatio Mortis Causa Definition", Duhaime.Org, 2019
<http://www.duhaime.org/LegalDictionary/D/DonatioMortisCausa.aspx> [Accessed 5
February 2019]
Evans, Gareth, "Constitution and formalities of a trust", Digestiblenotes.Com, 2018
<https://digestiblenotes.com/law/trusts/constitution_and_formalities.php> [Accessed 5
February 2019]
Life of a London Law Student, "Constitution of Trusts", Life of a London Law Student, 2015
<https://lifeofalondonlawstudent.com/constitution-of-trusts/> [Accessed 5 February
2019]
Oxfordindex, "Rule in Strong V Bird - Oi", Oxfordindex.Oup.Com, 2019
<http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100433288>
[Accessed 5 February 2019]
Oxfordreference, "Rule in Strong V Bird - Oxford Reference", Oxfordreference.Com, 2019
<http://www.oxfordreference.com/view/10.1093/oi/authority.20110803100433288>
[Accessed 5 February 2019]
Pearce, Robert A, and Warren Barr, Pearce & Stevens' Trusts and Equitable Obligations
(Oxford University Press, 2015), p. 28

Pearce, Robert A, John Stevens, and Warren Barr, The Law Of Trusts And Equitable
Obligations (Oxford: Oxford University Press, 2010), p. 3
Revolvy, LLC, ""Strong V Bird" On Revolvy.Com", Revolvy.Com, 2019
<https://www.revolvy.com/page/Strong-v-Bird> [Accessed 5 February 2019]
Sexton, Billy, "Equity & Trusts – Formalities", Allaboutlaw.Co.Uk, 2016
<https://www.allaboutlaw.co.uk/stage/study-help/equity-trusts-formalities> [Accessed 5
February 2019]