Beware the ‘gifted’ Trojan horse: analysing the equitable maxim—‘Equity will not perfect an imperfect gift’

Abstract

This article analyses and argues for the continued relevance of the maxim—Equity will not perfect an imperfect gift for three reasons. First, it is principally sound. Centuries of historical development should not be discarded due to its arbitrary application. Second, the deviations from the maxim were justified. The cases which were decided wrongly have subsequently been accounted for. Third, common law jurisdictions including Singapore, Malaysia and the United Kingdom still apply Milroy v Lord, as proven by empirical analysis. Last, this article proposes a new three-step test to prevent further arbitrary application: (i) As a starting point, Equity will not perfect an imperfect gift. (ii) However, it may do so where the settlor has objectively done all he could to transfer legal title. (iii) If step (ii) conflicts with step (i), Equity looks to the substance, not the form, considering the facts of each case.