Completing the Transfer
Delivery and Goods
A gift of goods is incomplete without delivery. Delivery is the mechanism by which goods are passed. Physical delivery may not be required if constructive delivery takes place. Where goods cannot be physically delivered because of their bulk, they maybe constructively delivered by means. Delivery of a key or equivalent.
A part of a set may be delivered as a representing the whole. Delivery followed by gift, manifestation of intention to make a gift, or alternatively manifested the intention or followed by delivery will suffice.
Where the goods are already in possession of another though not by way of a gift, a verbal gift, may be made without further delivery. A gift for the benefit of a third-party will be sufficient to vest the property in that third party.
Certain types of chose in action pass by delivery. Others require a form of assignment. In the former category are bearer instruments. In the latter are documents requiring an instrument of transfer or endorsement.
Formalities for Land
A transfer of real property must be made by deed. A transfer of registered title land must be made by way of registered transfer. The transfer or creation of a beneficial interest must be in writing, signed by the donor.
Equitable interests can be transferred even those on the registered land subject to the risk and power of the registered owner to override them by transfer to a third party.
Formerly, special words of limitation were acquired in deeds of real property. In particular, the statute of uses inferred generally a gift was ineffective, with the result that certain wording was required to, albeit the operation of the statute.
Formalities for Goods
Ownership of goods may be transferred by delivery. An instrument which expresses the desire that a person should have a particular good without any delivery of it will not pass the property in it to the putative donee.
Chattels or movables can be transferred by deed. Stamp duty liability may arise in this case, so it is usually avoided.
A complete gift of goods, where possession remains with the donor, should be effected by a bill of sale duly registered under the Bill of Sale Act. Otherwise, the gift would be void as against trustee where the goods to remain in the donor’s possession.
A chose in action being an intangible right in an asset may be a gift. A mere possibility or expectancy is not capable of being owned. Accordingly, a voluntary transfer even one by deed is inoperable as there is nothing on which the deed may fasten. However, an assignment for value will be supported by equity and may be enforced in equity.
A general assignment of book debts or any class of them must be registered as a bill of sale as they may be void as against the trustee in bankruptcy with limited exceptions.
A promissory note not given for value does not make the payee a creditor.
Formalities for Intangibles
Transfer of shares must be undertaken in accordance with the manner prescribed by the articles/constitution. There is a prescribed form of transfer which must be produced to the registrar, company secretary, duly stamped together with the existing share certificate. Registration is required to effect the transfer. See generally the section on shares.
A policy of life insurance must be signed by the instrument in writing. A notice must be given to the insurance office and the assignment must be duly stamped where applicable. Stamp duty is no longer applicable.
Government stock and public and local authority stock are transferrable in accordance with regulations made by the relevant authority.
In the case of post office savings etc. each scheme has its own rules in relation to the transfer of units etc.
Passing by Trust
A gift may take place by a declaration of trust in favour of another which is irrevocable by its term. There must be an immediate and irrevocable intention by the trustee to declare him as itself as trustee. Where land is concerned, it must be in writing, signed by the person who declares the trust.
Ownership may pass by reason of a resulting trust or constructive trust. See separately the principles of resulting trust in equity.
Where a person purchases assets providing the money but take the purchase in the name of another, the presumptive position is that that other holds it in a resulting trust for the person who has provided the money. It applies equally when several persons purchase in the name of one of them or purchase in equal shares but provide monies in different shares and proportions.
Where money is given by way of a gift for a purpose, the surplus may be held on resulting trust for the persons who made the gift. In charitable cases, there is provision for application of gifts given with a charitable intent to other associated analogous purposes. See the section on the cy-pres doctrine.
The presumption of a gift above in relation to spouses applies to other close relatives. The principle applies to children, grandchildren, persons in loco parentis.
At common law, there is no presumption where the investment is made by a wife in favour of a husband or a mother in favour of a child. This is likely not to apply in view of modern circumstances and general equality provisions.
The presumption of advancement may be rebutted where it is shown that there is no intention to benefit. Contemporaneous act may be sufficient evidence. Later acts of declaration will be irrelevant save to the extent that shows the contemporaneous position.
Showing Intent / Rebutting Presumption
The presumption of a resulting trust may be rebutted by the circumstances. Where persons are married, it presumed that there is an intention to gift at common law. Circumstances may show that there is a donative intention.
Formerly, deeds required express language to rebut a resulting trust and use. They required a double confirmation, one to avoid the effect of the statue of use and a second to rebut a resulting trust. This requirement has been removed by the 2009 Land Act Reform.
A business relationship may rebut the presumption.
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