What are the exceptions to the maxim “equity will not assist a volunteer? Give factual examples to support answer and relevant cases.
There are certain known exemptions to the rule that equity will not assist a volunteer . a) These are where the proposed donee has acquired title to the property by being chosen as administrator of the donor’s estate . That is if a donor has endeavored to create an instant bequest inter vivos to a donee which have not passed by reasons of the fact that the lawful formalities required for the exact transfer of title to the particular belongings in inquiry have not been complied with, then if the donee has after that become the executor or administrator of the donor, the gift is considered to have been perfect . This was the authority in Strong v Bird a solo executor had rented a sum of hard cash from his stepmother intended that it should be paid back by an adjustment of rent payable. At the time of death, an amount of £900 was still in arrears and the next of kin alleged the balance of the debt . However because the beneficiary had been appointed an executor it was held that the arrears relieved at that point .
b) Donatio mortis causa could also be argued as another situation where equity assists a volunteer . This is where a bequest is made by proof of the anticipation of death but is conditional upon that death . These types of gifts are basically death bed gifts made in contemplation of death upon the death of a donor with some form of delivery of the subject matter of the gift . Where the intended gift is defective but was given as an interim measure in contemplation of death . An illustration of this, is where a man desires his mistress to benefit upon his death but does not aspired to reveal her existence until either by making a will in her favour or by transferring a property while he is still alive . In the case of personal property generally a donee’s title is inclusive upon the donor’s death and no more acts...
Corin v Patton (1990) 1169 CLR 540, 557.
Dillwyn v Llewelyn (1862) 4 De GF & J 517.
Gilbert’s Lex Pretoria (1817) CH 342.
Montague v Bath (1693) 3 Ch 55 22 ER 963.
Strong v Bird (1874) LR 18 Eq 315.
Bob Hughes, `The Exception is the Rule: Donatio Motis Causa’ (2003) 7 Journal of South Pacific Law http://www.paclii.org/journals/fJSPL/vol07no2/2.shtml (Accessed 20/05/11).
Richard Edwards & Nigel Stockwell, Trust and Equity (9th ed, 2009) Longman, London, England.
Robert A. Hughes, Trust Law in the South Pacific (1999) USP, Suva, Fiji.
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