Transfer of legal title to personal property

5. INTER VIVOS EXPRESS TRUST: Formalities: Depends on trust being created by declaration or transfer/settlement.

1. By declaration: creator declares him/herself to be trustee of that property interest for beneficiaries. No formalities that must be complied with to create trust by declaration. 2. By transfer/settlement: involves creator transferring property interest to another to be held on trust for beneficiary.

Types of transactions through which property can be transferred

1. Contractual sale 2. Sale: choses in action (debt) 3. Inter vivos gift 4. Inter vivos gift: choses in action (debt) 5. Inter vivos express trust 6. Testamentary disposition (will)

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Capacity

1. Minor cannot make will (WA s 5), but exceptions include unless married (s 6) or unless authorised by court (s 20). 2. For adult to have testamentary capacity, person must be "of sound mind, memory and understanding": Bailey v Bailey (1924), unless making of will is authorised by court (WA Pt 3 Div 2).

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Formalities 2

Altercation/revocation of wills

3. INTER VIVOS GIFT OF GOODS ('DURING LIFE'): Capacity

As above.

5. INTER VIVOS EXPRESS TRUST: Capacity

Assumed as above.

4. INTER VIVOS GIFT OF CHOSE IN ACTION (DEBT): Capacity and intention

Capacity as above; intention also donative.

Three elements that must be met regardless of transaction type

Capacity, intention and formalities

3. INTER VIVOS GIFT OF GOODS: Intention

Donative intention. For valid inter vivos gift of proprietary interest, donor must have intention to make gift/must have intended to confer benefit on donee by: 1) divesting himself/herself of the proprietary interest; and; 2) vesting that interest in donee.

Merging of intention and delivery

Elements of intention and delivery must coincide at some point for property interest to pass.

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Intention

Existence of testamentary intention unlikely to be issue. What is an issue is determining what is meant by certain words used in document. Also, refer to WA s 9.

1. CONTRACTUAL SALE: Formalities

GA s 22: passing of title to specific/ascertained goods under contract of sale occurs when parties intended it to pass. GA s 21: title can't pass unless goods are ascertained. GA s 10: title can't pass to buyer until seller owns goods contracted for that are ascertained.

Intention 2: use of legal language not necessary

If legal language of trusts not used, intention to create trust may still be found. Burden of proving intention is on person alleging trust has been created.

We should also have non-rejection by the donee

Law assumes acceptance of gift by donee, yet sometimes people don't want to accept gift. Sometimes donee might be able to avoid gift; so gift is never completed because delivery requirement is not fulfilled. Where gift completed, donee may disclaim gift/undo transfer of title in equity by communicating in some way to donor.

5. INTER VIVOS EXPRESS TRUST: Intention 1: Outward manifestation of intention: Byrnes v Kendle [2011].

Needs evidence of intention at time of alleged creation. Creator of trust can't argue they had 'subjective' intention contrary to intention manifested by their words/actions. If document uses legal language of trust, courts usually say it is a trust and matter will be ended.

2. SALE: CHOSES IN ACTION (DEBT): Capacity

Not an issue.

1. CONTRACTUAL SALE: Capacity

Often not an issue. One with title to property has capacity freely to dispose of that property unless she/he is a minor/of unsound mind.

4. INTER VIVOS GIFT OF CHOSE IN ACTION (DEBT): Formalities

PLA s 134 also applies.

2. SALE: CHOSES IN ACTION (DEBT): Formalities

PLA s 134: 1. Applies only to an absolute assignment 'not purporting to be by way of charge only'. Assignment must be by writing under hand of assignor. Transfer must be accomplished by written document assigned by assignor him/herself/company.

3. INTER VIVOS GIFT OF GOODS: Formalities 1: Deed

PLA ss 73 and 73A: 'delivery' means any kind of act over and above signing demonstrating intention of person executing deed to be bound by the terms of deed. Intention demonstrated by grantor of interest handing over deed to the grantee.

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Formalities 4

Passing of title to beneficiaries: beneficiaries have no property interest in assets of testator until executor gives assent. After assent given, property interest received under will usually treated as having vested in beneficiary at time of testator's death.

3. INTER VIVOS GIFT OF GOODS: Formalities 2: Delivery

Physical handing over of goods to donee at or before intention to deliver goods was formed is sufficient delivery. Deed must be signed/sold/delivered, meaning a change in possession: Re Stoneham and Thomas v The Times Book Co Ltd).

1. CONTRACTUAL SALE: Intention

Refer to Rule 1, 2 or 3 in the Goods Act 1958 (Vic) s 32.

2. SALE: CHOSES IN ACTION (DEBT): Intention

Self-explanatory.

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Formalities 3

WA s 34: will takes effect upon testator's death and not before. Has NO effect until testator dies.

6. TESTAMENTARY DISPOSITION (WILL): Wills Act 1997 (Vic): Formalities 1

WA ss 7 - 11: a will is not valid unless...

Incomplete voluntary transfer: Corin v Patton (1990): If donor has done everything necessary to effect transfer of legal title, equity recognises the gift.

What remains to be done can be done by donee without any further action from donor. Transfer by way of gift is complete in equity if Corin v Patton test is met after assignment is writing is done and before notice is given.