No. Name Reg No.
1 AINAMANI INNOCENT S23B11/005
2 NAKAWENDA SHEBA IRENE S23B11/083
3 NAZZIWA CHRISTINE S23B11/093
4 NKUBA SPIRINO S23B11/097
5 NDYANABO MARTHA S23B11/095
6 ARINDA TRISHA NICOLE S23B11/013
7 NDYAMUHAKI ENOS S23B11/039
8 AMODING MERCY CAROLINE S23B11/131
9 ONDULI PAUL S23B11/
10 OONYU AARON S23B11/
11 MUGISHA CALEB S23B11/073
12 ATIMANGO IMMACULATE MARION S23B11/021
13 NAMAKULA SUZAN CS19B11/336
Analyze the different doctrines of equity?
THE DOCTRINES OF EQUITY
A doctrine is defined in the Black’s law dictionary as a legal principle that is
widely adhered to. It is a rule or governing principle of Law especially when
established by precedent or it is a set of general principles which govern the way in
which equity operates by illustrating the qualities of equity.
There are three main doctrines of equity; election, satisfaction and
performance. Conversion is not so applicable today.
1. ELECTION
This doctrine emphasizes that a person may not take a benefit and reject an
associated burden. In short, a person should not choose between parts of a
transaction.
Election in simple terms means to choose and therefore arises where a
person is faced with a choice to make in which he cannot choose both options but
only one. He can either choose one or reject all as one cannot approbate and
reprobate at the same time.
Election runs on the equitable maxim of ‘he who wants equity must do
equity.’
The essential elements of Election were laid down in Re Edwards1 by
Jenkins, LJ who specified them to be;
a) Intention on the part of the testator to dispose of certain property
b) That the property he purports to dispose of is actually not his
c) That a benefit is given to the true owner under the same transaction
a) Intention on the part of the testator to dispose of certain property
It should appear from the will itself that the testator was purporting to dispose of
property which was not his or hers. The presumption is that the testator knows his
or her interests in the property he is giving away.
This proposition cannot work if;
i) When the words can be construed to some other way and have a sensible
effect. The words in the will therefore have to be clear and unambiguous
to give rise to an election.
ii) When the legacy has ceased to exist or operate. Election operates on the
facts existing at the death of the testator. However, Court can re-examine
the disposition to see whether the legacy still exists e.g. where a
testator(T) in his will has conferred a legacy on a man (A) but sells the
same legacy before he dies, the legacy has ceased to exist and so no issue
1
[1958] Ch.168 C.A.
of election will be there. The sale adeems the legacy and so is
inoperative.
b) Property of another is disposed of
The testator must purport to dispose of property belonging to another for election
to arise. Four conditions have to be satisfied;
i) Property must be capable of alienation.
Alienation looks at the capacity right of a piece of property or property right to be
sold or transferred from one party to another e.g.
A who is holding a piece of property in trust for C cannot alienate that property to
another person but C. If a testator T purports to transfer that property though
conferring a benefit on A the trustee, election cannot arise as the property is not
capable of alienation by him.
ii) Void disposition
This issue arises mainly owing to the rule against perpetuities. The rule against
perpetuities seeks to prevent a person from putting criteria in a deed or will that
would continue to affect the ownership of property long after he or she has died.
An infringement on this rule creates an illegality and equity cannot aid an
illegality. Therefore, property ought not to have criteria or conditions attached that
go on forever but should be capable of free alienation.
iii) Appointment to object with proviso in favour of non-object
If the testator makes an appointment in a person’s favour which is held to be
invalid as transgressing the rule against double possibilities and also confers a
benefit upon the persons entitled in default of appointment, no question of election
arises.
Similarly, if the testator makes a valid appointment in a person’s favour but adds a
proviso in favour of another, the proviso is ignored and the former is not put to
election but rather takes the gift without obligations.
iv) The title of the person put to election must be independent of the
instrument raising the issue of election.
The property that the testator is purporting to dispose must be another person’s. In
a scenario where a testator T owns a piece of property that he gives A to be using,
the issue of election will not arise if the testator in his will asks A to transfer the
property to C even if the testator is conferring on A another benefit because the title
of the property that T intends to dispose of is not independent of the instrument
giving rise to election.
c) A benefit is conferred on the actual owner of the property being
disposed of
This seems rather obvious as no man would voluntarily accept to lose his property
without him benefiting especially if the loss is to come at the decree of another
man. Therefore, for election to arise, a testator has to offer a legacy to the actual
owner of the property a legacy to make up for the land that the testator intends to
transfer. If the actual owner makes a choice between his property and the legacy
that a testator bequeathed him under the will, he will be said to have elected.
EFFECTS OF ELECTION
It imposes an equitable charge. If a person to elect dies before electing, his assets
devolve and no one can elect in his or her place. Also, the property given to A
devolves subject to the charge and can only be claimed after compensating C out
of it.
It confers benefits that are testamentary in nature and C receives a testamentary
gift.
Election may be express or implied and it refers back to the death of the testator or
the date of the gift. Thus, if A elects against the will, the amount of compensation
B receives depends on the valuation at the date of the testator’s death.
2. SATISFACTION
This is the donation of a thing with the intention that it is to be taken either wholly
or in part in extinguishment of some prior claim of the donee.
Ademption is the disappearance of the subject matter of a specific legacy through
its disposal or destruction before the testator’s death. It is a complete or partial
withdrawal of a legacy by an act of the testator during his life.
A legacy is defined in the Black’s law dictionary2 as a gift by will especially of
personal property and money.
Satisfaction operates on the equitable maxim, that ‘equity imputes an intention to
fulfil an obligation.’ Satisfaction is based on intention. However, courts rely more
on presumptions.
Satisfaction operates mainly in four categories as discussed below;
a) Satisfaction of debts by legacies.
This happens when a person T owes money to person A. T gives a legacy to A. The
question is whether A can claim both the debt and the legacy independently? In the
eyes of equity, the intention of the parties will be taken into account. If the legacy
is express, i.e. given saying that it’s in extinguishment or reduction of the debt, the
legacy will be held to that effect.
2
Bryan A Garner, Black’s law dictionary, 10th Edition
Hammond v Smith3
A testator made a proposal to the creditor that a legacy should extinguish part of
the debt owned. The creditor did not object to that. This agreement clearly brought
out the intention from its terms. If a testator gives a legacy to his creditor but
mentions nothing, there is a presumption that the debt is to be swallowed up. There
are exceptions to this presumption however;
i) The presumption only exists where the debt existed before making the
will. Harlock v Wiggins4
ii) The presumption will not work if the will contains a direction to pay the
debt. Bradshaw v Huish5
iii) The presumption will only work if the legacy is in sum as great or greater
than the debt.
b) Satisfaction of portion debts by legacies: Rule against double portions
This also operates on the equitable maxim, that equity leans against double
portions.
Equal division could occur unintentionally where after a parent has made a will for
equal division during his or her lifetime.
E.g. T executes a bond to give Ugx 10,000,000 on a certain date to A, his
illegitimate son to whom he stands in loco parentis and before the date arrived, T
took A into a partnership with him and credited Ugx 12,000,000 worth of shares to
his account. The latter provision will be held to satisfy the debt.
Hereunder, three main issues arise that ought to be answered; what a portion is, to
whom satisfaction applies and the strength of the presumption.
i) Nature of a portion.
Ordinarily, the debts between parents and children are governed by ordinary rules,
and as such, one will ask what converts such a gift or debt a portion?
The obligation undertaken by a parent or one standing in loco parentis with the
intention of setting up the child in life. The portion must as such be substantial
although this depends on the wealth of the parent and the age of the child.
There mut be an intention to establish the child and as such, a random gift or gift to
discharge the child’s debts cannot be a portion. However, gifts of stocks, start up
capital, shares in a business among others are potential portions depending in
situations and context in which they are given.
ii) To whom does satisfaction apply
The presumption of satisfaction applies mainly to those who stand in loco parentis
with each other such as parents and their children.
This presumption will thus be hard to establish in relation to a grandfather or
grandmother, uncle, or other relatives though this is not absolute and so can be
3
1864. [S. C. 9 L. T. 746
4
(1888) 39 Ch.D 142
5
(1889) 43 Ch.D.260
establishes as was seen Pym v Lockyer6 where a wealthy grandfather had placed
himself in loco parentis to his grand children much as their father was still alive. To
the contrast is Ojule v Okoya7 where a claim for satisfaction failed because the
defendant failed to prove that the testator was standing in loco parentis to him in
the sense of being bound to maintain him.
iii) Strength of the presumption
The presumption in regard to portions is greater in comparison to debts e.g. where
it is in regards to portion of debts a small legacy than the portion may constitute
satisfaction while residuary debts may also constitute satisfaction in relation to
portion debts.8
The presumption against double portions can be rebutted by extrinsic evidence of
the intention to be found in the will itself.9
c) Satisfaction of portion debts by portions
The same applicable to satisfaction of portion debts by legacies equally applies to
satisfaction of portion debts by portions.
d) Ademption of legacies by portions
The equitable presumption against double portions may adeem a legacy.
A legacy by way of portion is adeemed o ceases to take effect, if after making
the will, the legatee actually receives a portion or receives an enforceable right to
receive one for instance by means of a covenant or agreement.
Ademption applies only to portions between parents and children or someone in
loco parentis. 10
The presumption in favour of satisfaction of ordinary debts by legacies may be
excluded by small differences between the two while differences must be
substantial in order to exclude the presumption of satisfaction of portion debts by
legacies. However, with the presumption in favour of ademption, this can only be
rebutted by considerable differences
Re Tussaud’s Estate11
3. PERFORMANCE
Performance is the act which a party has himself or herself to do and is considered
to actually have been done as was defined in Sowden v Sowden12
6
1841
7
(1927)1 All NZR 1
8
David J Bakibinga, Equity & Trusts(Revised Edition) pp 169
9
Re Tussaud’s Estate(1878)9 Ch.D. 363 C.A.(E)
10
Re Tussaud’s Estate (1878)
11
Ibid
12
1785
It, like satisfaction operates on the equitable maxim ‘equity imputes an intention
to fulfil an obligation.’
This doctrine is closely related to satisfaction and some scholars refer to it as
satisfaction by implication. Cases of performance fall in two main categories;
i) Covenant to purchase and settle land
ii) Covenant to leave money
as discussed below
i) Covenant to purchase and settle land.
Where a man has covenanted to purchase and settle land, or to convey and settle
land or to pay money to trustees to be laid out by them in the purchase of land, and
has failed to carry out his obligation but has nonetheless, subsequently to the
covenant purchased lands, the court will under this doctrine presume that the
purchase was made in performance or part performance of the covenant.
Lord Lechmere v Lady Lechmere13
However, if he or she sells or mortgages such land, equity will say that he or she
never meant the purchase to be in pursuance of performance of the obligation.
Equity may regard the property bought in performance as subject to the rights of
the beneficiaries from time to time of the purchase.
ii) Covenant to leave money
Where a man has covenanted that he will leave or his executors will pay a sum of
money or a share of his personality to another person and then dies intestate, if that
other person has taken a share of his personality under the law of intestate
succession, such share is presumed to be taken in performance or part performance
of the covenant.
Blandy v Widmore14
By marriage articles, a ma covenanted that he would leave his wife £620 on his
death to his wife if she survives him. He died intestate and wife under intestate
laws became entitled to a portion that significantly exceeded £620 which she
claimed. She later on tried to claim the portion that the late husband had
covenanted but Court held that what she claimed under intestate succession laws
should also cover or be taken to have been in performance of the covenant and so
had no separate claim. Equity operates against double portions.
4. CONVERSION
This is the equitable invention of turning money into land and vice versa or
personal property into real property from the moment of expression of intention of
it.
13
(1722) 3 PWM 211 25
14
(1715) 1 P Wms 324
It revolves around the equitable maxim, ‘equity regards as done that which
ought to be have been done.’
Conversion basically evolved to ensure that trustees do not defeat the interests of
the beneficiaries by failing to carry out their obligations. Money was considered
land and land considered money in equity and as such, it did not matter whether
the trustees converted the money to land or not so long as the settlor intended them
to be converted. Conversion became effective from the date one(settlor) showed
his intention to convert money to realty.
Sweetapple v Bindon15
A testatrix bequeathed £300 to be used for the purchase of land to be used by her
daughter and grandchildren. The daughter died and no land had been purchased
yet. The husband to the daughter claimed for the fund of £300 and the claim was
upheld. Court rejected the argument of the trustees that he would be entitled to the
land which had not been purchased yet and held that although no land had been
purchased yet, the doctrine of conversion regarded the money as realty.
In conclusive remarks, the above discussed doctrines are applicable in Uganda
especially Election, performance and satisfaction. Conversion has not been actively
applied in Ugandan context however. The above doctrines indeed have been
governing principles shaping the way and mode in which equity operates.
15
(1705)
