Opinion on Behalf of Mr Sharon, Ben, and Sonya - Essay Example

Property Law Assessment Formal Legal Advice IN THE MATTER OF: LEO, SHARON, BEN And SONYA OPINION ON BEHALF OF MR SHARON, BEN, AND SONYA I am to advise Sharon, Ben and Sonya whether the ownership of every property will pass or fail in accordance with the circumstances in the given scenario. The Facts 1. The basic facts appear as outlined. 2. Leo, Sharon, Ben, and Sonya buy a house in equal shares. The house needs a lot of work to be done on it which includes the work done by Sharon and Sonya of repairing the roof. The main issue is that all of them have some shares of the house and hence are entitled to various benefits (Cooke, 2003. P. 41). An issue may arise where one may want to transfer their shares to another person since they are not registered. There is no evidence of a documented agreement between them. 1 3. Leo cuts his finger and develops a dangerous disease while cleaning the gutters. On his bed, he realises minimal chances of survival and calls for a meeting. He gives Sonya a cheque worth £100,000 on his own current account and note meant to transfer ownership of his shares of the house to her. The main issue in this scenario is the gifts that Leo gives to Sonya. The transfer of ownership depends on whether Leo dies. An issue may arise where Leo recovers from the disease and Sonya is not ready to surrender the gifts (Lorberbaum, 2001, p. 46). 2 4. He gives Sharon the key to his tin box under his bed telling her the contents belonged to her. The main issue in this scenario is the transfer of the gifts that Leo gives to Sharon. The transfer of the property will not be possible if Leo recovers, and he gives since he realizes minimal chances of survival.3 5. He gave Ben his accountant’s business card, telling him to contact him and get ownership of all his share certificates, sell them and give the proceeds to Leo’s students in equal shares Siam (Legal International, 2001). An issue might arise concerning the authority to transfer ownership of share certificates. Ben must be convinced that Leo has approved the transfer.4 6. Leo recovers from the illness. A part of the roof falls on him on leaving for his first walk since the infection, and he dies instantly. The main issue in this scenario is the death of Leo. It is accidental, therefore, all the gifts that he had given out succeeds. 7. Ben arranges to sell the shares and spend the proceeds on a holiday. The main issue in the scenario is the sale of shares. Ben arranges to surrender his shareholding in the house which is possible since he is the legal owner of the house.5 The Law 1. In particular, I rely upon: Sen v. Headley [1991] 2 WLR 1308 [1] Re Beaumont [1902] 1 Ch 889 at 892 [2] Duffield v. Elwes (1827) 1 Bli (NS) 497 [3] Wilkes v. Allington [1931] 2 Ch 104 [4] Staniland v. Willott (1852) 3 Mac & G 664 [5] Gardner v. Parker (1818) 3 Madd 184 [6] Re Lillingston Deceased [1952] 2 All ER 184 [7] Birch v. Treasury Solicitor [1951] 1 Ch 298 [8] Hewitt v. Kaye (1868) LR 6 Eq 198) [9] Bromley v. Brunton (1868) LR 6 Eq 275 [10] Re Owen [1949] 1 All ER 901 [11] Re While [1928] WN 182 [12] Tate v. Hilbert (1793) 2 Ves Jun 111 [13] Lumsden v. Miller (1980) 110 DLR (3d) 226 [14] Woodward v. Woodward (1992) R.T.R. 35 [15] Wilkes v. Allington (1931) 2 CH 104 [16] Staniland v. Willot (1852) 42 ER 416 [17] Re Craven’s Estate (1937) CH 423 [18] Birch v. Treasury Solicitor (1950) 2 All ER 1198 [19] Re Weston (1902) 1 CH 680 [20] Re Dudman (1925) 1 CH 553 [21] Re Lillingston Deceased (1952) All ER 184 [22] Agnew v. Belfast Banking Co (1896) 2 IR 204 [23] Freeman & Lockyer v Buckhurst Park Properties [1964] 2 QB 480 [24] Stock transfer Act, 1963 [25] Property transfer Act, 1991 [26] Smith J Roger, Property law (Pearson Longman, 2009) Campbell Dennis, International Securities Law and Regulation [2007] – I (Lulu.com, 2007) Usa Ibp Usa, Argentina Tax Guide (Intl Business Publications, 2009) 2. The property concerning this scenario falls under estates. Donatio mortis causa is a method through which ownership of property passes without the need to comply with the formalities of Wills Acts when death occurs. The courts develop and extend the doctrine on a case-by-case basis. This results in the doctrine not sitting comfortably with the various commercial realities of the world [7, 1308]. As a gift, a DMC is of amphibious nature, being inter-vivos and not testamentary. It is the act inter-vivos through which the absolute title of the gift transfers to the beneficiary but only when the donor dies.6 For a DMC to be valid, it must satisfy various requirements. The gift has to be made in contemplation of death, it must be conditional on death, and the donor has to have parted with the dominion over the subject matter of the gift [2, 892]. Property ownership and transfers in Argentina requires people to have a Tax Identification Number or a Tax ID that can easily be accessed through a lawyer. The transfer of gifts or inheritance is not subject to taxes in the country and hence extremely convenient since it is free. The parties need to establish a contract where a public notary determines the venue and time to sign the title deed (Forrester, 2010, p. 67). The deed may not be accepted in the Real Estate Registry if the deed executed before a public notary does not have the terms of transfer. 7 THE INSTANT CASE 3. In the first issue, Leo, Sharon, Ben, and Sonya agree to buy a house. Sharon and Sonya willingly do the work which includes repair the roof. The shares of the house entitle to all of them depending on their contribution (Cooke, 2010, p. 96). The house, therefore, belongs to all of them since the title is in joint names of all of them [25].8 4. A conveyance into joint names is an indication of both beneficial and legal, joint tenancy unless the court proves contrary. 5. They do not agree to the conveyance the respective beneficial interests since there is no verbal agreement concerning sharing of beneficial interests. THE INSTANT CASE: GIFTS TO SONYA 6. In this case, Leo gives Sonya a cheque of £100,000 on his current account and a note to transfer the ownership of his shares of the house to her. Leo satisfies the contemplation of death requirement since he was in fear of death. The gifts are conditional to death. Leo has a clear intention to give but only if he dies. If he does not die, the gifts will not take place and hence haves back the subject matter of the gifts (Hopkins, 2010, p. 79). In Staniland v. Willott (1852), the donor recovered from illness, and the court declared the beneficiary who had transferred the shares to hold them for the donor as a trustee.9 7. According to Hewitt v. Kaye (1868), the handling of a cheque to a person may not necessarily amount to a DMC of the amount that the cheque represents. A cheque that a donor draws is just a mere order to deliver some amount of money. The death of the donor withdraws the authority to work on it. A cheque is not a property but only an indicator of the title to property. Payment occurs if it is beneficial during the donor’s lifetime.10 8. The transfer of money from Leo’s current account would not succeed. A cheque is not nature property but an instruction to the bank to carry out transfer of funds (Lorberbaum, 2001, p.89). After the death of the donor, the bank ceases to follow his instructions thus a cheque will not pass a DMC as it can only be an inter vivos gift.11 9. Slight chances would, however, exist that Sonya would cash the cheque and receive the funds before the bank gets the information about Leo’s death. This would serve as the only way that Sonya could receive the gift of £100,000. 10. The delivery of transfer of shares will not be satisfied. According to the Stock Transfer Act 1963, shares must be registered to be transferred to another person. If it were for a public company [8,416], the transfer would be successful. The shareholders failed to register the shares and hence the transfer was not possible.12 THE INSTANT CASE: GIFT TO SHARON 11. In this issue, Leo gives Sharon the keys to his tin box under his bed indicating an issue of transfer of property. This is an indication that the contents in the box would be delivered appropriately.13 12. In Leo’s tin box was a cheque for winning from the National Lotto. The transfer of ownership of the cheque would not pass. A cheque is just an instruction to the bank to transfer funds and, therefore, upon death of the donor, the bank ceases following the instruction of the person (Thompson and Goldstein, 2006, p. 112). The transfer of funds would, therefore, not occur unless the Sharon had cashed the cheque before the bank came to learn about Leo’s death [26].14 13. The box also had a set of keys to his villa in Argentina. The gift of the key to his villa indicates that the transfer of the property will pass through a DMC. Giving the key is a clear indication of interest to give the house and all its contents. The ownership of the property will, therefore, pass [16,104]. The villa can be transferred using UK legal authority and principles since they provide permission. This will take place where the principal has given authority to the agent facilitating the transfer. According to Argentinean Ownership Laws, a DMC is applicable to Argentinean law as the ownership of property will pass without having to comply with the formalities of Wills Acts when death occurs.15 14. Leo gives Sharon the keys to his car. Giving the keys to the car is an indication of the intention to give the car. In Re Cravens Estate [18,423], the court held that, it would not satisfy the delivery since the donor kept a copy of the key. CH 423 Re Craven’s Estate (1937) 446. Leo gives the keys to the car and, therefore, fulfilling the delivery.16 15. The tin box also has a bag of Argentinean money. Leo satisfies the delivery by giving Sharon the key since she would access the money that is in the bug. The transfer of the money would pass.17 16. In Woodward [15, 38] giving someone the keys to a property in a DMC will satisfy delivery of the property. According to Re Cravens Estate, in instances where the donor keeps a key, then the situation does not satisfy the delivery Leo gives Sharon the keys to his car. Giving the keys to the car is an indication of the intention to give the car. In Re Cravens Estate [18,423], the court held that, it would not satisfy the delivery since the donor kept a copy of the key CH 423 Re Craven’s Estate (1937) 426. Leo gives the keys to the car and, therefore, fulfilling the delivery. The property in the tin box would, therefore, pass from Leo to Sharon.18 THE INSTANT CASE: GIFT TO BEN 17. In Sen v. Headley, the court held that ownership of certificates can be passed where the donor has given access to his property [1, 1321]. Since Leo gave his accountants business card to Ben, the transfer of property would be successful. Leo’s students would, therefore, get access to the shares of the amount that Ben would realize from the sale of the property 2 WLR Sen v. Headley [1991] 1321. In the scenario, Ben does not give the proceeds of the shares to the students. Ben gets ownership of the share certificates that belong to Leo, sells them but does not give the proceeds to the intended people (Singer, 2010, p. 117). He plans of spending the proceeds on a holiday.19 THE INSTANT CASE: SALE OF SHARES 18. For this case, Ben would manage to sell his shares to another person and spend the proceeds on a holiday. He has the full authority to sell his shares and, therefore, this case would pass. His ill intentions might come to an end if the court discovers his intentions of not giving the proceeds to the intended people. His mission will succeed if the court does not discover in advance.20 Conclusion Sonya will not get the gift of money according to paragraph 7 and 8. He can, however, have the chance to get the money according to paragraph 9 if the bank is not aware of the death of Leo. According to paragraph 10 the transfer of shares is not possible according to the Stock Transfer Act. According to paragraphs 12, 13, 14, 15 and 16, Sharon would get the gifts given by Leo. Leo gives the key indicating his interest to give away the property. Ben gets the certificates from Leo’s accountant according to paragraph 17.21 Bibliography An introduction to buying property in Argentina accessed on 10th February 2012. Bays Alfred. The Law of Property: Including Estates and Wills, with Questions, Problems (BiblioBazaar, 2011). Cooke, Elizabeth: Modern studies in property law, Volume 2 (Hart Publishing, 2003). Forrester P. Julia, Chase Earl Edward and Chase: Property law: cases, materials, and questions (LexisNexis, 2010). Hopkins R. Bruce: The Tax Law of Charitable Giving (John Wiley & Sons, 2010). Lorberbaum Menachem: Politics and the limits of law: secularizing the political in medieval Jewish thought (Stanford University Press, 2001). Overview Buenos Aires real estate guide accessed 12th February 2011. Siam Legal International, Legal Effect of a Blank Share Transfer Instrument [2011] Singer, Joseph. Property law: rules, policies, and practices (Aspen Publishers, 2010). Thompson. H. Barton and Goldstein Paul: Property law: ownership, use, and conservation: cases and materials (Foundation Press Thomson/West, 2006). Wood Thomas: The laws concerning travelling (The Lawbook Exchange, Ltd., 2007). Read More