Property Law - Leo, Sharon, Ben and Sonya - Essay Example

? IN THE MATTER OF: GIFTS GIVEN TO SHARON, BEN AND SONYA BY LEO ------------------------------------------------------------------------------------------------------------------------------------- ADVICE ON BEHALF OF SHARON, BEN AND SONYA ------------------------------------------------------------------------------------------------------------------------------ THE FACTS: 1. Leo, Sharon, Ben and Sonya bought a house on equal shares and it needed repairs. 2. Sharon and Sonya repaired the roof while Leo cleaned the gutters and in the procedure he cut his fingers. 3. From the wound, Leo developed a dangerous disease, which resulted to fever and he was sure that he was going to die. 4. On this account, Leo gave Sonya a cheque of ? 100,000 on his own current account and a note saying that his share of the house was hers. He gave Sharon the key to a tin box under his bed saying that the contents were for her. He gave Ben his accounts business card telling him to contact the accountant who had his entire share certificate so that he should get ownership of them, selling them and thereafter give the proceeds in equal shares to Sharon and Sonya. 5. Leos tin contained a cheque for winnings from national lotto, a set of keys to his villa in Argentina, s set of keys to his car and a bag of Argentinian money. 6. Leo recovered from his illness, however on leaving the door for his first walk, part of the roof fell on him and killed him. 7. Ben sold the shares and used the proceeds for a holiday. The Law: In particular, I rely upon the following laws and case laws. 1. Re Craven Estates (No 1) (1937) I Ch 423, HC 2. Re Beaumont (1902) 1 CH 889 3. Cain vs. Moon (1896) 2QB 283 4. Wilkes vs. Allington (1931) 2 CH 104 5. Birch vs. Treasury Solicitor (1950) 2 All ER 1198 6. Re Lilingstone Deceased (1952) All ER 184 7. Woodard vs. Woodard (1991) The Times, 18th March CA. 8. Sen vs. Headley, (1991) CH 425 9. Stock Transfer Act of 1963 10. The Wills Act of 1837 11. Agnew vs. Belfast Banking Co. (1896) 2 IR 204 12. Re Dudman (1925) 1 CH 553 Donatio Mortis Causa: 1. The gifts under this case are known as donation mortis causa. These gifts are conditional and possession take place after the death of the donor.The Wills Act of 1837 allows the issuance of such gifts.Farley (2002) notes that in the case of Re Craven Estates, the court held that a person is not allowed to dispose of his property after death under British laws but an exemption is provided for by the Wills Act of 1837 (p.45). But this principle of donation mortis causa is an exemption as provided by the same act of 1837. 2. In Re Beaumont, the court held that Donatio Mortis Causa is a singular form of gift and is amphibious nature. It is neither inter vivos nor testamentary and the recipient is entitled to the gift after the donor dies (Jackson, 1972). 3. Keeton (1968) by using the case of Cain v Moon observes that for a gift under donation mortis causa to be valid it must satisfy the following conditions, the gifts must be made in contemplation of death and not necessarily expectation (p.61). The recipient must receive the subject matter of the gift and there must be a condition that the gift reverts back to the donor in case he recovers. 4. The validity of donation mortis causa does not depend on whether the donor died of the anticipated cause, but on whether the donor actually died. In Wilkes vs. Allington, it was held that the most important issue in DMC is whether the donor actually died (Fitzgerald and Muncie, 1983). 5. Harrison (1965) observes that if a title does not pass by delivery, a DMC can be valid if there is evidence of possession of title or property which entitles the possessor to the property given, and he cites the case of Birch v treasury solicitor, where the court held that if the gift in question is bulky, the handling to the recipient a means of accessing the gift, i.e. the key is symbolic enough to constitute delivery (p.36). THE CASE: 1. The first issue noted in the gifts given to Sonya, Sharon and Ben is on delivery of the property. Leo gives Sonya a cheque of ? 100000, to Sharon he give a key to his tin box and to Ben Leo gives him his business card to contact his accountant so that he may have ownership of his share certificate and sale them after which the proceeds to be shared equally with his students. In Cain vs. Moon, the court held that donation mortis causa cannot stand the test of law unless there is a sufficient delivery of gifts to the beneficiary by the donor with the intention of losing control over the property. 2. The cheque given to Sonya is an inter vivo gift, since cheques are not properties but instructions to a bank to transfer funds and banks cease to obey them in case the donor dies. In this respect, Sonya can only get money from the Banks if Leo is alive and signs it. Since there is a little for Sonya to cash the cheque and get the money before the bank is informed of Leos death. In Re Beaumont, the court held that inter vivo gifts cannot pass as gifts of donatio mortis causa (Jackson, 1972).In issuing his share of the house to Sonya and by writing it down, the manner of delivery is valid under the principles of donatio mortis causa. In the case Sen. vs. Headley, the court held that a simple declaration that the house belongs to you is a valid mode of delivery (Damrosch, 2003). Sonya is legally entitled to the house. 3. Leo gave Sharon a key of his tin box and declared that all contents in it belonged to her. In Re Lillingstone, the court held that giving a person access through issuing a key to another chamber where the gifts are is an appropriate delivery (Marylebone, 1983). From this point of view, it will be appropriate to conclude that the keys to the tin were delivered appropriately. However in the case of Re Craven Estates, the court held that by the donor keeping a copy of the key, he was not losing dominion over his property therefore delivery is not sufficient. Lewis (1992) in disputing this notion cites the case of Woodard vs. Woodard where the court held that the effect of retention of a spare key will vary with the facts of each case (p.61). The reason for retention will be considered by the courts, and if it was for the purpose of retaining dominion over the property, then delivery will not be sufficient for donatio mortis causa to be valid, but if retention was not deliberate, it will not be inconsistent with transfer of property. From the above case, delivery is appropriate since the donor made his intention known by shouting that the contents in the tin box belonged to Sharon. 4. In the tin, was a cheque from lotteries which Leo participated? As outlined above the mode of delivery is an inter-vivo gift and is not valid under donatio mortis causa, as outlined in the cases Re Beaumont. The delivery of the car keys is valid as outlined in the case of Re Lillingstone. Therefore Sharon will enjoy possession of the cars. By giving the keys of his house to Sharon and the declaration that everything in the tin belongs to Sharon, the delivery is appropriate and valid under donatio mortis causa. In Sen. vs. Headley,he court held that by giving a key to a house and declaring the passage of ownership from the donor to the recipient, a delivery has been done and is valid under donatio mortis causa (Cawthon, 2004). 5. To Ben, the mode of delivery is not sufficient and therefore his possession of the share certificate is invalid. According to the Stock Transfer Act of 1963, shares must be registered to be transferred to someone else (Mansfield and Wardle, 1993). This was not the case. Its only public shares that can pass the validity of DMS under the mentioned condition, however we do not have information if the shares were public or private. 6. Leo satisfied the contemplation of death requirement, as he feared that he would die from the deadly disease. However, Leo died from other causes apart from the contemplated cause. In Wilkes vs. Allington, court held that death arising out of other causes other than the contemplated cause does not affect the validity of a donatio mortis causa. However, Leo died out of a fall from the roof constructed by Sharon and Sonya. And Young (1938) note that it is a criminal act to cause a person’s death (p. 27), while Aggs (1925) through the cases Agnew vs. Belfast Banking Company, and Re Dudman, argues that DMC gifts cannot be given through criminal acts (p.26). However the fall was accidental since Sharon and Sonya had no intention of killing Leo, therefore the act was not a criminal offense. 7. If there are any issues arising from this advice, Instructing Solicitors are welcome and should contact me to resolve any matters of concern. Bibliography Aggs, W. H., & Law, H. W. (1925).The Law of Property Act, 1925 with full notes and index, together with an introduction. London: Sweet & Maxwell. Cawthon, E. A. (2004). Medicine on trial: a handbook with cases, laws, and documents. Santa Barbara, Calif.: ABC-CLIO. Damrosch, D. (2003). The Longman anthology of British literature (2nd ed.). New York: Longman. Farley, J. (2002). Understanding and using the British legal system. London: Key Advice Guides. Fitzgerald, M., & Muncie, J. (1983).System of justice: an introduction to the criminal justice system in England and Wales. Oxford, England: B. Blackwell. Harrison, J. F. (1965). Society and politics in England, 1780-1960; a selection of readings and comments.. New York: Harper & Row. Jackson, R. M. (1972). The machinery of justice in England, (6th ed.). Cambridge [Eng.: University Press. Jenks, E., & Stephen, H. J. (1925).Law of property (18. ed.). London [u.a.: Butterworth. Jennings, I., & Young, C. M. (1938).Constitutional laws of the British empire,. Oxford: The Clarendon press. Keeton, G. W. (1968). The law of trusts: a statement of the rules of law and equity applicable to trusts of real and personal property, (9th ed.). London: Pitman. Lawson, I. (1925). Law of Property Act 1925 [15 Geo. 5. Ch. 20]. London: H.M.S.O.. Lewis, C. (1992). Judicial remedies in public law. London: Sweet & Maxwell. Mansfield, M., & Wardle, T. (1993).Presumed guilty: the British legal system exposed. London: Heinemann. Marylebone, Q. H. (1983). Hamlyn revisited: the British legal system today. London: Stevens. Minty, L. L. (1928).Constitutional laws of the British Empire,. London: Sweet & Maxwell, limited. Read More