Jurisdiction(s):
United Kingdom

Khan v Mahmood: unconscionability perfects imperfect gift; defective TR1 operates as equitable assignment under LPA 1925, s53(1)(c) (England and Wales)

Published on: 24 March 2021

Published by a LexisNexis Property expert

Legal News

Article summary

The court determined that either or both of the following applied:

the signed TR1 functioned as an assignment of the respondent’s equitable interest in the property; and
the court would cure the imperfect gift, it being unconscionable for the respondent to retreat from the intended gift.

Written by John Aldis, barrister at St Philips Chambers, who appeared for the appellant. Khan v Mahmood [2021] EWHC 597 (Ch).

What are the practical implications of this case?

To begin with, this judgment joins the small body of authorities in which the courts have validated an imperfect gift even though the donor had not taken every step within his power to bring the transfer about. The orthodox position in Milroy v Lord [1861–73] All ER Rep 783 is that the settlor must have done all that, given the character of the property in the settlement, needed to be done to pass the property and bind himself to the settlement. Yet, applying Pennington v Waine [2002] EWCA Civ 227, Mr Justice Marcus Smith reasoned that the question is not whether everything has been accomplished which, having regard to the nature of the property, is required to be done to effect the transfer, but...

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