In What Case Did the CA Explicitly Base the Test

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The Answer is The case where the Court of Appeal (CA) in England explicitly based the test for the constitution of a trust on 'unconscionability' is the case of Pennington v Waine [2002] EWCA Civ 227. In this case, the court dealt with the issue of whether a gift of shares had been effectively constituted as a trust or not.

The background of the case involved an intended gift of shares from the donor, Mrs. Ada Pennington, to her nephew, Harold. The donor had signed a share transfer form and handed it to her accountant with instructions to transfer the shares. However, the transfer was not completed before Mrs. Pennington's death. The question arose whether the shares had been effectively transferred to Harold or if they formed part of Mrs. Pennington's estate.

The Court of Appeal held that the shares had been effectively transferred to Harold. The court reasoned that it would be unconscionable for the personal representatives of Mrs. Pennington's estate to deny the gift, given that all necessary steps that were incumbent on the donor had been taken to transfer the shares. The court found that the donor had done everything that was expected of her to transfer the shares, and the only remaining steps were to be carried out by her agent (the accountant).

The decision in Pennington v Waine is significant because it demonstrates the court's willingness to consider the concept of unconscionability when determining whether a trust has been constituted. The court effectively relaxed the strict requirements for the constitution of a trust in favor of a more equitable approach, taking into account the actions and intentions of the parties involved, and whether it would be unconscionable to deny the existence of a trust based on the circumstances of the case.

In What Case Did the CA Explicitly Base the Test

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