Similarly, it must be established that the testator’s intention to gift the asset to his executor was unbroken, in the sense that, from the time of the declaration of intention to the date of his death, the donor had not changed his mind. Accordingly, in Re Wale [1956] 1 WLR 1346, it was held that the rule would not be satisfied if the donor once had the relevant intention to give away the asset, but had forgotten about the declaration, and treated the property as his own up to the date of his death.
Note
The rule has been extended to perfect an imperfect trust where the trustee/executor acquires the property under the will of the donor. In other words, the capacity in which the property is acquired is immaterial for the purpose of ascertaining whether the trust is perfect, provided that the transferee/executor was appointed a trustee. Thus, in Re Ralli (see p 61 above), when Irene’s husband became a trustee of the 1899 settlement, he acquired, inter alia, Helen’s property as executor, and since he was also appointed a trustee of Helen’s intended marriage settlement in 1924, he had therefore acquired the trust property and was required to hold the same on trust for the beneficiaries under the 1924 settlement.
Question
Intestacies
The simple rule in Strong v Bird was unjustifiably extended in Re James [1935] 1 Ch 449 to transfers made to the administrator on an intestacy. However, Walton J, in Re Gonin, severely criticised this unwarranted extension and expressed serious doubts as to the validity of the decision.
Re Gonin (Decd) [1979] Ch 16, HC
Facts
A mother who wanted to make a gift of her house to her daughter erroneously believed that she could not do so because the daughter was illegitimate. As an alternative, the mother wrote out a cheque for £33,000 in her daughter’s favour. This cheque was found after her mother’s death. At this point, the cheque could not be cashed because on the mother’s death the funds in her account became frozen. The daughter became administratrix of her mother’s estate and claimed the house under the Strong v Bird rule.
Held
The Strong v Bird principle was not applicable for there was no continuing intention to give the house to the daughter:
Walton J: . . . by appointing the executor, the testator has by his own act made it impossible for the debtor to sue himself. And, indeed, so far has the rule been taken, that although it will no longer apply if the person appointed executor has renounced probate, yet it will still apply if power to prove has been reserved to him. The appointment of an administrator is not the act of the deceased but of law. It is often a matter of pure chance which of many persons equally entitled to a grant of letters of administration finally takes them out. Why, then, should any special tenderness be shown to a person so selected by law and not the will of the testator. It would seem an astonishing doctrine of equity that if the person who wishes to take the benefit of the rule in Strong
v Bird manages to be the person to obtain a grant then he will be able to do so, but if a person equally entitled
manages to obtain a prior grant, then he will not be able to do so. This appears to treat what ought to be a simple rule of equity as something in the nature of a lottery.
Question
In your view, should the rule in Strong v Bird be extended to intestacies?
Kodilinye, G, ‘A fresh look at the rule in Strong v Bird’ [1982] Conv 14
Kodilinye examined the basis of the rule in Strong v Bird. He concluded that the criticisms by Walton J in Re Gonin of the principle in Re James were unfounded. The administrator of the deceased’s estate was in the same position as the executor for the purposes of the Strong v Bird rule. Both fiduciaries acquired the deceased’s property. As an administrator, the deceased’s prop- erty is acquired by the next of kin by operation of law, whereas the executor obtains the testator’s estate by the conscious and positive act of naming the executor in his will. For the purpose of the rule, it is immaterial how the legal estate vests in the personal representative. There is no require- ment that the vesting of the estate in the donee must come about through the voluntary act of the donor.
In addition, Kodilinye contends that the application of the Strong v Bird rule to Re Ralli marks an unjustified extension of the principle for the following reasons:
(i) the plaintiff [in Re Ralli] was trustee of a third party’s, not the donor’s, will;
(ii) [in Re Ralli] there was no attempted immediate gift of any property but only a promise to settle property in the future;
(iii) it is doubtful whether Strong v Bird applies where the executor appointed is not the intended donee of the beneficial interest but a trustee of such interest for the donee;
(iv) it was central to Buckley J’s reasoning in Re Ralli that the settlor had bound herself by covenant to assign the property to the trustees of the marriage settlement, and he expressly limited his decision to such a case; (v) Buckley J did not expressly base his decision on Strong v Bird.