Re Rose

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Citation: Re Rose [1952] Ch 499.

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 322-24 [4.53].

Contents

Background Facts

  • The donor wanted to transfer shares to his wife and the company secretary.
  • He executed documents in the proper form, transferring shares to (a) his wife; and (b) his wife and the company secretary on trust.
  • The transfers were lodged for registration, but the donor passed away.

Argument

  • The defence argument against the transfer was on the ground that, as the donor intended the gift to operate as a transfer of shares, the Milroy v Lord principle requires that the court had to give effect to that intention, and prevent equity from treating them as declarations of trust.

Legal issues

  • Gifts - Imperfect Gift.
    • What is the date at which the gift of the shares became complete?
    • If the gift was complete at registration of estates, the shares were dutiable.

Judgment

  • In Milroy v Lord,[1] the donor had not done everything in his power to effect the transfer of shares.
  • However, in this case, the donor had done everything necessary (within his power - the fact that the forms weren't registered yet was not his fault), and thus an equitable interest had passed to the donees even before the registration.
  • Milroy v Lord’s stress on giving effect to the intention of the donor is too broad. The donor’s intention is important, but even if a document acts as a transfer, a trust can still arise to give effect to the transfer.
  • In conclusion, equity will intervene and remedy a donor and donee who have done everything within their own power necessary to transfer the gift, even if acts to be performed by third-parties have not been completed.

References

  1. (1862) 45 ER 1185, 1189-90.
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