Nor Azzahra binti Norhaznan

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Group tutorial 3
Tutorial 7

Adam covenants in a marriage settlement with his future wife, Kono, to put in trust any bequests
over RM 150,000 that he may inherit during his life. According to the covenant, he will hold in
trust 1/2 of any such bequests for any issueand 1/2 for Konos cousin, Chin. Adam and Kono
marry. During his life, he receives several qualifying bequests but never properly puts them into a
trust.
At Adams death, he has one natural daughter named Cheryl and one son from a previous
marriage named Jimmy.
Kono comes to see you for legal advice about the claims being made by Chin, Cheryl and Jimmy.
Advise Kono.
Issue :
The issue is whether there is a marriage consideration between his future wife Kono in inheriting
the trusts from Adam?
Based on the issue above, trust must be properly constituted in where it requires more than just
compliance with the stated formalities, if any and satisfaction of the three certainties. Other than
that, the general rule here mentioned that equity will not assist a volunteer and perfect an
imperfect gift.
Since, Adam has not directly follow the traditional approach on declaring himself as a settlor, he
has appointed a covenant to settle his mode of transfer to the property. But there are certain
requirements he has to follow to know if the transfer of property is considered valid or not.
Therefore in the case of Pullan v Koe has regarded that equity only recognizes consideration of
marriage and the right to enforce a convenant may extend within the consideration of marriage.
Therefore, Re Densham Goff Judge has laid down his judgement by saying that marriage
settlement is made based on firstly, an occasion whereby marriage is done before in
consideration of marriage and secondly, it must be made unconditionally only to take effect on
marriage taking place, as well as it must be made for purpose with a view of an encouraging
marriage.
Thus, looking at the situation above, however Adam has died before he got married to Kono and
thus, in an event of a failure of issues, based on the case of Re Plumptre, whereby there were no

marriage consideration which took place and it was held that as a beneficiary, the next of kin will
not receive that property.
However, there are certain exception which the property can be transferred based on benevolent
construction as the trust could only be validly be created if the property has been conveyed to all
and not only one trustee. It could be seen based on the two step inquiry.Firstly is whether the
donor intent to make an immediate absolute gift or was it intended to be revocable or conditional
on the transfer of the trust property? In this step the court favour on the former and secondly is
once it is established, that the donor has intended a trust, there is a difference between a transfer
to one or all the trustees. Was the transfer of property necessary to be transferred to the intended
person?
Thus, in the case of Pennington V Waine mentioned that equity will not act to perform and
imperfect gift not assist a volunteer. Since, there was no marriage consideration done in the
situation, the property will only be handed down to Adams related kinship which is Cheryl his
natural daughter and his son from a previous marriage which is Jimmy