exception to Equity will not assist volunteer

1. Exceptions to
the rule “Equity Will Not Assist
Volunteer”
Nur Syafiqah bt Mohd Najib 1122045
Kamaliah bt Abbas 1122492
Siti Nur Jannah bt Hasanuddin 1122051

2. Exception: Equity will not assist a
volunteer
•An incomplete transfer of property to the
trustee will be regarded as complete in an
exceptional circumstances.
•The consequences of these principles is to
enable the transferees entitled the support of
equity in order to perfect imperfect gifts.
•The claims may be brought even at the
request of volunteers.

3. Circumstances: Equity will assist a
volunteer
1. The rule in Strong v Bird (1874)
LR 18 Eq 315
2. Proprietary estoppels
3. Donatio Mortis Causa (DMC)

4. Facts of the case
Strong v Bird (1874) LR 18 Eq 315
• Facts. The defendant’s stepmother lived with him and his
wife, paying for board and lodging. He had borrowed £1,000
from her and it was agreed that the debt should be repaid by
deductions of £100 from each quarter’s rent. Deductions
were made for two quarters and on the third quarter the
stepmother refused to hold the defendant to the agreement
and paid the full rent until her death. This arrangement by
conduct did not discharge the debt at law since there was no
consideration for the release. The defendant became the sole
executor of his stepmother’s estate. The issue was whether
the loan was repayable by the defendant. The next of kin
(plaintiff) attempted to recover the money from the
defendant.

5. • Held. The transfer of the relevant sum had
been perfected and the debt extinguished by
the appointment of the defendant as executor.
The stepmother’s donative intention had
continued until her death.

6. The rule in Strong v Bird (1874) LR 18
Eq 315
• Where an inter vivos gift (or transfer) is
imperfect because the transferor has failed to
transfer the relevant property to the transferee,
the imperfect transfer will become perfect on
the death of the transferor.
• This will be the case if the transferee becomes
the executor of the transferor’s estate and the
donor manifests a present, continuing intention
to make an inter vivos gift.

7. • A perfect gift of property requires the donor to
transfer the property to the donee with the
intention of gifting the property to the donee.
• The rule in Strong v Bird is that if an inter vivos gift
is imperfect by reason only of the transfer to the
donee being incomplete, the gift will become
perfect.
• When the donee acquires the property in the
capacity of executor, who, after payment of all the
debts of the testator, is required to distribute the
estate in accordance with the testator’s will.
• The donee will take the property beneficially in
accordance with the intention of the donor, even
though he acquires the asset in the capacity of
executor of the donor’s estate.

8. Issues: Was Bird required to pay back the
loan?
• When a donee of an imperfect inter vivos gift
becomes the executor of the donor's estate, it
perfects the gift.
• For the rule to apply, there are four conditions:
1. The donee is appointed executor.
2. The donor must have intended to give donee an
inter vivos gift.
3. Intention continued until death.
4. Intention to give specific property. Not just
general
• This is an exception to the general rule that equity
will not perfect and imperfect gift.

9. Answer
• No, the stepmother made an inter vivos gift to
Bird. This was demonstrated by making Bird
the executor of her estate. As the executor of
her estate, Bird would be responsible for
calling in all debts to the estate. It would not
make sense for Bird to sue himself.

10. Malaysian case: RE SYED HASSAN BIN ABDULLAH
ALJOFRI, DECD; SYED HAMID BIN HASSAN ALJOFRI v
SHARIFAH SALMAH BINTE ABDULLAH ALHABSHI &
ANOR [1953] 1 MLJ 190
• The plaintiff who was one of the executors of the deceased's
estate claimed that the deceased had made a gift to him of a
piece of land during his lifetime. He also claimed that the
house standing on this land and in which he has been staying
was built with moneys belonging to him. His Counsel relied on
the principle in Strong v Bird LR 18 Eq 315 that "where a
testator has expressed the intention of making a gift of
personal estate belonging to him to one who upon his death
becomes his executor, the intention continuing unchanged,
the executor is entitled to hold the property for his own
benefit.- That principle applies also to real estate”.

11. • Held: to succeed in this case the plaintiff had to
prove that there was on the part of the deceased a
present intention to make an immediate gift and
that such intention survived until the date of the
deceased's death.
• While it is not a principle of law that there must be
corroboration in proving the claim against the
estate of a person who is dead, the claimant must
prove his case against the estate clearly and
convincingly.
• From the evidence, the plaintiff has not discharged
the onus upon him to prove that there was a valid
gift of land to him by the deceased. The plaintiff's
claim on the issue will be dismissed.

12. PROPRIETARY ESTOPPEL

13. • Arise if there is promise, assurance or
encouragement is made to the volunteer that
he will acquire rights in land and as a
consequence the volunteer relies on the
promise and acts to his detriment.
• Estoppel by encouragement

14. • Gopal Sri Ram JCA in Boustead Trading v Arab
Malaysian Merchant Bank Bhd : The detriment is
not prerequisite.
• For the specific purpose of the rule that equity will
not assist a volunteer, the application is this :
- English Law : B may be entitled to have an
imperfect transfer perfected if B could show that A
had made representation which A intended to be
relied upon and which in fact was relied upon by B
causing B to suffer a detriment.

15. - Malaysian Law : B may be entitled to have an
imperfect transfer perfected if B could show
that A had made representation which he
intended to be relied upon and which in fact
was relied upon by B where the circumstances
of the case renders it unconscionable for A to
go back on the representation.

16. Dillwyn v Llewelyn
• A father wanted the son to stay nearby and
encouraged him to build a house on the
father’s land.
• The father promised to convey the land to the
son but this was not by deed.
• No actual conveyance took place and the
son spent $14, 000 to have the house
constructed
• The court held that the son was entitled to
have the imperfect transfer perfected.

17. Pascoe v Turner
• When the marriage relationship ended, the
husband told his wife that the “house is yours
and everything in it”.
• In reliance of the promise the wife spent her
own money on repairs, improvement and
decoration, as well as on furniture
• In spite of his promise to have the house
conveyed to her, this was never done.
• Thus, the court awarded her a conveyance to
the house.

18. Greasley v Cooke
• A maid lived with a family for much of her life.
• She cared for mentally disabled member of
the family.
• She was promised the right to stay in the
property as long as she wanted and in
exchange she did not reveive wages
• When a member of the family later tried to
evict her, the court held that she had right to
occupy the property for the rest of her life.

19. Taylor Fashions LTD v Liverpool Victoria
Trustees Society Co Ltd
• The modern doctrine was laid down.
• It is absed on the prevention of
unconscionable conduct by the party where
he relies on his strict legal rights to prevent the
volunteer from making a claim.

20. Sim Siok Eng v Government of
Malaysia [1978] 1 MLJ 15
• Appellant was a local contractor, entered
into a contract with the Government of
Malaysia in respect of one tender of
construction.
• After signing the contract appellant
discovered that his office had made a serious
error of calculation involving $1,300,000.
• Appellant found difficulty in obtaining building
materials to complete the work because of
the insufficient budget.

21. • Appellant went to see the Director of
Public Works Department, Sarawak.
• As a result, the respondent orally agreed
to supply the appellant with certain
building materials the cost thereof to be
deducted from the payment due to the
appellant.
• From then on whenever the appellant
wanted such building materials he would
just write to the Divisional Engineer.

22. • After some time, no building materials were
supplied after seizure of plywood by the Anti
Corruption Agency.
• Consequently, appellant stopped work.
• After he stopped work his contract was
terminated on the understanding that
following the October meeting he was
relieved from supplying the materials and the
contract was varied. The important thing is
that he relied on the promise or assurance
given by respondent and altered his position
accordingly.

23. • Relying on the promise or assurance given
appellant had altered his position. His
responsibilities to supply those materials
had been suspended or kept in abeyance.
For respondent to re-impose the
contractual provision adequate notice
should be given.
• By whatever name the promise was called
- concession or temporary arrangement - it
was binding on respondent but terminable
by respondent giving reasonable notice.

24. • Where it is not possible for the promisee who
has altered his position, upon reliance of the
promise of the promisor, to resume his
previous position, the benefit of the estoppel
would continue in effect for the promisee’s
benefit.

25. Cheng Hang Guan v Perumahan Farlim
Sdn Bhd [1993] 3 MLJ 352
• The plaintiffs claimed that they were and
are lawful and protected tenants and
were entitled in law and equity to
possession of portion of land on which
were situated their two dwelling houses
and their vegetable farm
• The registered proprietors of the land are
the trustees of Khoo Kongsi. Plaintiffs had
converted what was once a swampy
jungle land into a productive farm.

26. • The visiting trustee of Khoo Kongsi had told
Plaintiff that it was not necessary to
change the tenancy of the vegetable plot
to her name and that she could continue
planting vegetables as long as she wished
provided she paid rent.
• This is an assurance given by Khoo Kongsi
that as long as plaintiff continued to pay
ground rent he could stay and cultivate
the vegetable plot as long as he wanted.

27. • After the assurance given by the visiting trustee, the
plaintiffs invested RM12,000 in installing a sprinkler
system.
• The assurance given to Plaintiffs is consistent with
the practice of Khoo Kongsi before the developers
Farlim came on to the scene in the late seventies.
• For more than 50 years, neither Khoo Kongsi or
anyone else had interfered with the farming
activities of the plaintiffs’ family.
• Only after Khoo Kongsi had entered into a joint-
venture agreement was there any interference with
the plaintiffs’ possession of the plot concerned.

28. • Here the plaintiffs and their forbears have
been in possession of the plot concerned
for decades and they have commenced
these proceedings to protect their rights to
remain in possession relying on equity or
equitable estoppel.
• In the circumstances, the plaintiffs’ claim
to the alleged equity does not depend on
the availability of the remedy of specific
performance.
• Plaintiffs’ claim was allowed by the court.

29. Donatio Mortis
Causa
(DMC)

30. Definition
• DMC is a latin term
• It means a gift under apprehension of
death
• Eg; when any thing is given upon
condition that if the donor dies, the
donee shall possess it absolutely, or
return it if the donor recover or should
repent of having made the gift, or if the
donee should die before the donor...

31. • DMC is differ from an absolute inter vivos
gift because the transfer of the asset is
conditional on death.
• DMC is distinct from testamentary gift
where the conditional transfer of
property inter vivos is not made by will.
Hence the procedures under Wills Act
1959 are not required to be comply with.

32. History of DMC
• originated in Roman law where it appeared to
be the product of attempts to avoid the
technical or formal elements of succession
law.
• The Roman law permitted this transactions
between husband and wife because these
were gifts conferred during the course of a
valid marriage.

33. Elements of DMC
a) Must be made upon
contemplation of death (illness)
b) Must be intended upon death
(revocable)
c) Must be delivery of the subject
matter to the donee (part
dominion)

34. (a) Must be made upon contemplation
of death (illness)
• the gift must be made upon contemplation of
death specifically rather than merely reflecting
that we all must die some day.
• The test here is subjective and the court may
decide this question by having regard to the
surrounding circumstances such as the
injuries, or illness of the donor, or the fact that
the donor was a patient in a hospital or etc.

35. Wilkes v Allington
• the donor was suffering from an incurable
disease (cancer) in 1922. Therefore, he made
a several incomplete gifts to his nieces. In
January 1928, after coming home from a
market by a bus, he caught a chill and died of
(pneumonia).
• Held : there was a valid donatio mortis causa
eventhough the precise cause death was
different to the contemplated cause.

36. Thompson v Mechan
• The deceased, who was very apprehensive of
flying, delivered the keys of his car and the
vehicle permit to the plaintiff shortly before
departing on a regular flight to Winnipeg. The
deceased arrived safely, but died suddenly from a
coronary thrombosis two days later whilst still in
Winnipeg.
• Held : the risk of normal air travel did not satisfy
the requirement of contemplation of death. It is
not sufficient merely to recognise that death will
occur sometime.

37. Question : DMC when suicide?
• The answer used to be DMC was not valid in
the case of suicide.
• Agnew v Belfast Banking Co and Re Dudman,
Held : that a donatio mortis causa was not
possible as that would be against public policy
and its an offence.
• However, in 1961 suicide is no longer a crime
(Suicide Act 1961)
• Thus, DMC is valid in a case of suicide.

38. (b) Must be intended upon death
(revocable)
• the gift must be intended upon death
which means the intention of the donor
is dependent on death.
• If the donor recovers, the gift is
revocable.

39. Gardner v Parker
• the donor was terminally ill when he made
the gift and died shortly after making it.
• Held that the DMC is valid,
‘If a gift is made in expectation of death, there is
an implied condition that it is to be held only in
the event of death.’

40. Tate v Hibert
• the deceased attempted to make an
immediate and unconditional gifts to the
nieces.
• The court ruled that an absolute gift to take
effect immediately cannot be considered as
donatio mortis causa.

41. (c) Must be delivery of the subject
matter to the donee (part dominion)
• there must be delivery of the subject matter
to the donee and intention to part dominion
over it.
• The donor must either hand over the thing to
be given, or the documents which constitute
the essential evidence of title, with the
intention of surrendering dominion over the
thing and not merely for safe keeping.
• Eg; key of the car, name title for the land and
etc

42. Re Craven’s Estate
• A testatrix was about to enter hospital for a serious operation.
In her will she had given her son a power of attorney over
some shares and money in a bank account.
• She told her son to get the property transferred into his name
as she wanted him to have it if anything should happen to her.
• The son, using the power of attorney, had the shares and the
money transferred into his name.
• His mother died a few days later
• Held; when his mother instructed him to transfer the property
into his name, having already given him a power of attorney,
there was sufficient parting with dominion to satisfy the
requirement for a valid donatio mortis causa

43. FYI : Problem arise to what kind of
property can be the subject of donatio
mortis causa ?
 Stock & shares
 Cheques
 Bank accounts
 Real property ( chattels/ lands & etc..)
 Safety Deposit Box
 Furniture & Personal Effacts

44. Cheques
• The donor’s cheques is a revocable order to
the bank to pay the person in whose favour
the cheque is drawn and is incapable of being
the subject matter of a DMC.
• Payment of the cheque may be revoked during
the lifetime of the donor and is revoked on
death

45. Re Beaumont
• Mr Beaumont who was very ill and in fear of impending death, on 19
February 1901 drew a cheque for 300 in favour of Mrs Ewbank, to whom it
was delivered.
• Mrs E endorsed the cheque and on 23 February it was presented for
payment at Mr B’s bank, where his account was overdrawn. The bank
manager refused payment, stating that Mr. B’s alleged signature was
unlike his ordinary signature and required confirmation of the
genuineness of the signature.
• The court found that the manager was willing to lend the money if he was
satisfied that the signature was genuine. Mr B died on 25 February 1901
without the cheque having been cashed. Mrs E claimed that Mr B’s
personal representatives ought to be compelled to complete her title on
the ground of valid DMC.
• The court held that the cheque was a revocable mandate which was not a
proper subject of a DMC.

46. Real property
• For many years it was assumed, on the basis
of nineteenth-century dicta, that land could
not be the subject of a donatio mortis causa...
• However…in Sen v Hedley, the court held that
land can be the subject of DMC.
• But its only restricted to unregistered land.
• In Duffield v Elwes, the court ruled that the
registered land cannot be the subject of DMC.

47. Sen v Hedley
• Mr Hewett and Mrs Sen was husband and wife. In
1986 he was taken terminally ill, was admitted to
hospital and knew that he did not had a long
time.
• In the event of his death, he told his wife, ‘The
house is yours, Margaret. You have the keys. They
are in your bag. The deeds are in the steel box.’
Then he died intestate.
• The next of kin of Mr Hewitt claimed for the
property. The court gave judgment to the next of
kin of Mr. Hewitt

48. • Then Mrs Sen appealed to the CoA.
• The CoA ruled that in doing so (giving the key
to the steel box containing the title deeds of
the deceased) , the deceased had indisputably
made a gift of the house to the plaintiff in
contemplation of his death to be effective on
his death and his parting with the dominion
over the title deeds to the house was
sufficient to satisfy the third of the
requirements necessary to establish a valid
donatio mortis causa.

49. Conclusion
Exceptions to the rule of equity ‘equity
will not assist volunteer’ & ‘ equity will
not perfect an imperfect gift’ :
• Rule in Strong v Bird
• DMC
• Proprietary estoppel