UNIT 5:ELECTION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 The guiding principle
3.2 Operation of the doctrine
3.3 Judicial basis of the doctrine
3.4 Essentials of the doctrine
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignments
7.0 References / Further Reading
1.0 INTRODUCTION
In the last unit, we considered the doctrine of conversion and reconversion. In this unit, we will con- sider the doctrine of election. The doctrine of election is yet another curious and artificial doctrine developed and nurtured by the learned and unpredictable minds of the English Chancery judges. As to the basis for its development, it was stated in the leading case of Noys v. Mordaunt (1706) Vern 581 at 583; 23 E.R. 978, that the general principle governing election was evolved to pre- vent a person claiming under a will from contravening it.
Of the doctrine of election Lord Eldon observes in Ker v. Wanchope (1819) 1 Bli. 1; 4 E.R. 1 at 22, that no person can accept and reject the same instrument. 'If a testator gives his estate to A and gives A's estate to B, Courts of Equity hold it to be against conscience that A should take the estate bequeathed to him, and at the same time refuse to effectuate the implied condition con- tained in the will of the testator. The court will not permit him to take that which cannot be his but by virtue of the disposition of the will; and at the same time to keep what by the same will is given or intended to be given to another person. It is contrary to the established principles of eq- uity that he should enjoy the benefit while he rejects the condition of the gift.'
The doctrine was originally confined to gifts arising under a will, but it was later extended to gifts under deed. This could be seen in the dictum of Sir Richard Arden M.R., in Freke v. Bar- rington (1791) 3 Bro. C.C. 274 at 285; 29 E.R. 533; while commenting on the doctrine, he ob- served that he did not mean, in that case, to 'intrench on the rule that no man can take an interest under a deed or will, without confirming the deed or will'. See further Anderson v. Abbot (1857)
23 Beav. 457; 53 E.R. 180.
2.0 OBJECTIVES
By the end of this unit you should be able to:
(i) Explain the doctrine of election;
(ii) Enumerate the judicial basis of the doctrine; and
(iii) List the essentials of the doctrine.
3.0 MAIN CONTENT
3.1 The Guiding Principle
The guiding principle is that if a donor, either by mistake or by design, gives property which is not his to give, and gives at the same time to the real owner of it other property, such real owner cannot claim the property given to him by the donor and at the same time retain his own property of which the donor sought to dispose. See James V.C. in Wollaston v. King (1869) 20 L.T. 1003, This was further elaborated upon by Lord Cairns in Codrington v. Codrington (1875) L.R. 7 H.L. 854 at 861, when he said that 'It is a well settled doctrine of the courts that where a deed or will professes to make a general disposition of property for the benefit of a person named in it,
such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions, and renouncing every right inconsistent with them.'
Thus in Taylor v. Williams (935) 12 N.L.R. 67 at 68, one of the very few cases on the doctrine to come before the Nigerian Court, Graham Paul J., said, 'The law as to election under a will is clear enough in its main principles. Where a testator under his will disposes or professes to dis- pose of property not his to dispose of, the disposition is of course of itself void and of no effect. But if the person to whom the property wrongly disposed of in fact belongs and who has the power to dispose of it, is a beneficiary under the will he is put to his election, that is to say he must refuse the benefit he gets under the will or allow his property to go under the testators de- vise of it, or compensate the devisee thereof for the failure of the devise'.
The doctrine is based on the principle which the courts apply in the exercise of an equitable ju- risdiction enabling them to secure a just distribution in substantial accordance with the general scheme of the instrument. See Lord Haldane in Brown v. Gregson (1920) A.C. 860, 868. The doctrine, which can be explained on the basis of the maxim that 'he who seeks equity must do equity', in practice means that equity will not allow a person to approbate and reprobate and, that if he approbates he shall do all in his power to confirm the instrument which he approbates. See Chitty J. in Re Lord Chesham (1886) 31 Ch. D. 466. The essence of it all is that equity will not allow a person to take a benefit under an instrument and at the same time assert a right which is inconsistent with the provision of the instrument.
3.2 Operation of the Doctrine
The doctrine applies where for example, A by his will gives to B "Agege Estate" which in fact belongs to C, and by another provision in the will, A gives his own property 'Ikeja Estate' to C. In this case, the gift of 'Ikeja Estate' to C has conferred a benefit on him, but at the same time an ob- ligation is imposed on him which is that he should allow his own 'Agege Estate" to pass to B as directed by the Provisions of the will.
Both at law and in equity, a person has no right to dispose of another person's property; thus, prima facie, in the illustration given above, C can keep his 'Agege Estate' and at the same time claim 'Ikeja Estate' under A's will; the result will be that B takes nothing. But the court of equity says it is inequitable for C to take a benefit under an instrument and at the same time refuse to discharge the obligation imposed by the instrument, if he accepts the benefit he cannot reject the burden; he who wants equity must be prepared to do equity. C cannot be compelled to transfer his 'Agege Estate' to B as directed by A's will since A has no power to dispose of C's property, nevertheless C would be called upon to elect, in which case C has one of two alternatives:
(i) To elect in favour of the instrument;
(ii) To elect against the instrument.
If he elects in favour of the instrument, he takes the benefit conferred on him by the instrument, but he must relinquish his own estate which was wrongfully disposed of by the instrument, and make it available to the person to whom it was given by the instrument in conformity to the in- tention of the donor. It is clear that the instrument per se cannot pass a good title in the elector's own property to the person to whom the property is purportedly given under the instrument; in that wise, the court imposes an implied condition that if the elector-donee accepts the benefit which the donor had power to give, he shall convey his own property over which the donor had no power, to the individual whom it is actually but ineffectually given. See Gretton v. Howard (1819) 1 Swanst. 433; 36 E.R. 443; Douglas v. Douglas (1871) L.R. 12 Eq. Cas. 617. 637.
If, in the alternative, he elects against the instrument, he, keeps his own property and at the same time claims the benefit conferred on him by the instrument but he must compensate the disap- pointed beneficiary (that is, the person who would have been entitled to the elector's own proper- ty had the elector elected in favour of the instrument) out of the benefit conferred on him by the instrument and to the extent of the value of the elector's own property which the elector has de- cided to retain. This brings out the distinction between equitable doctrine of election which is based on compensation and conditional gift which is based on forfeiture.
Compensation not Forfeiture
Where the elector takes against the instrument there is no question of his forfeiting the benefit conferred on him by the instrument. See Ker v. Wauchope (1819) 1 Bli 1 at 25. In other words it does not follow that he will be precluded from taking the benefit conferred on him by the donor. He is, however required in equity to compensate the disappointed person to the equivalence of that benefit which the donor intended the disappointed person to take. As stated by Jessel, M.R.,
in Pickersgill v. Rodger (1877) 5 Ch.D. 163 at 173, the disappointed person may, in that case say to the elector 'You are not allowed by a Court of Equity to take away out of the testatrix's estate that which you would otherwise be entitled to, until you have made good to me the benefit she intended for me'.
The equity of the court is not to forfeit the elector's benefit under the instrument but that as be- tween the elector-beneficiary and the disappointed-beneficiary, the latter is entitled to sequester or to keep back from the former the property so devised or bequeathed until compensation is made. The essence of the doctrine, therefore, is that the elector takes against the instrument sub- ject to an obligation to make good to the disappointed legatee the sum he is disappointed of.
Conditional Gift
In contrast, the case of conditional gift attracts forfeiture in that the beneficiary is put to his choice between the two properties, he cannot have both. For example, where a father gives away property belonging to his eldest son to another person and he also devises a piece of his own property to the eldest son stating that it should be in lieu of his property which he purports to take away from him. In such a situation the eldest son is merely put to his choice; the doctrine of elec- tion is excluded by the apparent expression of intention by the testator that the gift to the eldest son is conditional on his giving up what the testator purports to take from him. See Wilkinson v. Dent (1871) 6 Ch. App. 339 at 341-342.
3.3 Judicial Basis of the Doctrine
The juridical or the theoretical basis of the doctrine is not free from confusion. 'The principle is, that there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it.'
Per Lord Chelmsford in Codrington v. Codrington (1875) L.R. 7H.L. 854 at 866. In a narrow sense, the doctrine may be said to be based on the implied intention of the donor; ordinarily a do- nor is presumed to have intended to dispose of all the property, including the one not belonging to him, contained in the instrument, or that the instrument shall take effect as a whole. See Lord Hatherley in Cooper v. Cooper (1874) L.R. 7 H.L. 53 at 71.
Thus, the person against whom the case of election arises is bound to give effect to the whole in- strument, and there is an implied condition arising out of the dispositions that the person who takes under the instrument should renounce any independent title that he has and could set up against the instrument. Per Chitty J. in Re Wheatley (1884) 27 Ch.D. 606 at 612. But the basis of the doctrine involves more than merely resting it on the presumed intention of the donor. 'It is clear that such a basis, if pushed to its logical conclusion, can result in difficulties.' See Keeton; An Introduction to Equity (6th Ed.) p.189.
For example, it is not a requirement for the operation of the doctrine that the person making the disposition should have intended that the elector-beneficiary should take upon condition, for this would be inconsistent with the doctrine of election where the elector can keep both properties and then compensate the disappointed person. Secondly, it is immaterial, for the purposes of the doctrine, whether or not the donor gives away, by mistake or by design the property which does not belong to him. See Cooper v. Cooper (supra) at 67.
However, in Cooper v. Cooper (supra), Lord Cairn appreciated the difficulty in explaining the doc- trine on the basis of the presumed intention of the donor. In his opinion the rule of election does not proceed either upon an expressed intention, or upon a conjecture of a presumed intention, but it proceeds on a rule of equity founded upon the highest principles of equity, and as to which the court does not occupy itself in finding out whether the rule was present or was not present to the mind of the party making the instrument.
As was stated by Buckley J. in Re Mengells Will Trusts (1962) Ch. 791 at 797. 'For myself I should prefer to say that it is a doctrine by which equity fastens on the conscience of the person who is put to his election and refuses to allow him to take the benefit of a disposition contained in the will, the validity of which is not in question, except upon certain conditions.' The doctrine enables the court to secure a just distribution in substantial accordance with the general scheme of the instrument; it is a means of doing justice as between the elector-beneficiary and the disap- pointed person. See Lord Haldane in Brown v. Gregson (1920) A.C. 860 at 868.
3.4 Essentials of the Doctrine
The essentials of election are firstly that there should be an intention on the part of the donor to dispose of certain property; secondly, the property should not in fact be the donor's own proper- ty; and thirdly, a benefit should be given by the disposing instrument to the true owner of the property. (Per Jenkins L.J. in Re Edwards (1958) Ch. 168, 175 C.A.). The following analysis will illustrate the requirements for establishing a case of election.
- The donor must have given his own property to the elector; it is out of this property that the elector would compensate the disappointed person where the elector has elected against the instrument.
In Bristow v. Warde (1794) 2 Ves. 336; 30 E.R. 660. F had a power of appointment over stock in favour of his children. He appointed by his will part of the stock to the children and part to strangers, that is, persons who were not objects of the power. The children were entitled in default of appointment. The court held that the children could take both, that is, the part appointed to them and also the part that was ineffectively appointed to strangers; they being entitled to it in default of appointment. Here there was no case of election because the donor gave no property of his own to the children. The part which was improperly appointed to strangers, belonged to the children being the persons entitled in default of appointment and also the part appointed to them did not belong to F and therefore F could not dispose of it as if it were his own property. The de- cision would have been different if F had given some of his own property by the will to his child- ren.
Thus in Whistler v. Webstern (1794) 2 Ves. 367; 30 E.R. 676., where the facts were the same as above except that F by his will gave some legacies out of his own property to the children, the court held that the children must elect. If they elect in favour of the instrument, that is, the will, they would keep the legacies bequeathed to them and allow the property wrongfully appointed to strangers to pass in conformity with the will; but if they elect against the will, they would keep the property wrongfully appointed to strangers and also take the legacies given to them by F, but they must compensate the disappointed strangers out of the legacies given to them by F. The principle is that there must always be some free disposable property given to the elector so that if he elects against the instrument he can take out of it to compensate the disappointed person and also if he elects in favour of the instrument the property would be a compensation for what the donor has taken away from him.
In Taylor v. Williams (1935) 12 N.L.R. 67, where the donor purported to devise her undivided share in a family property, which she had no power to do under customary law, the court held that there was no case for election, for the donor had not given his own property to the person who was being called upon to elect. Under customary law family property is indivisible and a member has no alienable interest in the family property. See Ogunmefun v. Ogunmefun (1931) 10 N.L.R. 82.
- The donor must have given the elector's property to another person.
The principle is that the donor must have taken away some of the elector's property for which the elector has been compensated by the donor's gift to him. See James V.C. In Wollaston v. King (1869) L.R. 8 Eq. Cas. 165, 173; Romily M.R. in Box v. Bartett (1866) L.R. 3 Eq. Cas. 244,
248.
Thus, where an appointor under special power of appointment, wrongfully appoints the property to a stranger and gives his own property to the object of the power who also is entitled in default of appointment, the object of the power would have to elect; he owns the improperly appointed property being the person entitled to it in default of appointment and the appointor has also giv- en his own property to the object of the power. See Re Fletcher (1936) 2 All E.R. 236. But a mere object of a special power of appointment, who per se is not entitled in default of appointment, cannot be called upon to elect though the subject-matter of the power is appointed to another person and the appointor gives his own property to the mere object of the power, the reason be- ing that no property of the mere object of the power is given to a stranger; the subject-matter of the power is not that of the mere object until it is appointed to him and cannot be his if it is ap- pointed to a stranger.
Where an appointor makes an appointment in favour of a stranger which appointment is invalid because it offends the rule against perpetuities there is no case of election even though the object of the power is entitled in default of appointment and also the appointor has given some of his own property to him. In Re Nash(1910) 1 Ch. 1, the appointor by his will made an appointment in favour of a non object; the appointment was held void because if offended the rule against perpetuities; it was further held that there was no case for election even though the appointor gave his own property to the object of the power who was also entitled in default of appointment. (See further Wollaston v. King (supra)). Similar- ly, an appointment in favour of the object of a power who is also entitled in default of appointment, will not be a proper case of an election where the appointor imposes a trust or a wholly ineffective condition in favour of a stranger. See Re Neave (1938) Ch. 793; Blacket v. Lamb (1851) 14 Beav. 482; 51 E.R. 311.
In Wooldridge v. Wooldridge (1859) Johns 63 at 69; 70 E.R. 340, it was stated that 'where there is an absolute appointment by will in favour of a proper object of the power, and that appointment is followed by attempts to modify the interest so appointed in a manner which the law will not al- low, the court reads the will as if all, the passages in which such attempts are made were swept out of it, for all intents and purposes, that is, not only so far as they attempt to regulate the quan- tum of interest to be enjoyed by the appointee in the settled property, but also so far as they might otherwise have been relied upon as raising a case of election.' Thus, there must be some disposition of property which the donor had no right to dispose of to make it a case of election. See Box v. Barrett (1866) L.R. 3 Eq. Cas. 244 at 248.
- 3. The Two Gifts must have been Made in the Same Instrument
The doctrine of election can only apply when it arises within the document which raises the case of election, for example, where a will contains a gift of property not within the testator's dispos- ing power and a gift of the testator's disposing power and a gift of the testator's own property to the owner of the property which the testator purports to dispose of to another person. In Gibson v. Gibson (1852) 1 Drew 42 at 51-52; 61 E.R. 367, Kindersley V.C. observed: 'The doctrine of elec- tion, as applicable equally to all cases, is that a person who is entitled to any benefit under a will or other instrument, must, if he claims that benefit, abandon every interest the assertion of which would defeat, even partially, any of the provisions of the will or instrument that in no case is a person to be put to election, unless it is clear that the provisions of the instrument, under which he is entitled to a benefit, would be in some degree defeated by the assertion of his other right.'
In Re Edwards (1958) Ch. 168 at 177, T by her will devised Blueacre and some other properties to E and six others. Later, T entered into an oral agreement with E whereby Blueacre was given away to E for valuable consideration. T died without having altered her will. The question was whether E should be put on election. On the face of the will it is clear that T had disposed of cer- tain property belonging to E and had also conferred certain benefits on E. But the Court of Ap- peal held there was no case for election on the ground that the consequence of the inter vivos disposition of Blue acre was that at T's death there was no intention on his part to make a testa- mentary gift of Blueacre. The devise of Blueacre under the will had been revoked by reason of its disposition inter vivos, so that at T's death Blueacre was adeemed. Jenkins L.J. observed: 'The true position in such a case is, as it seems to me, that the testamentary disposition has clearly gone, and the person in whose favour the disposition of the property inter vivos is made simply takes it under that disposition without any question of his or her thereby taking against the will, and thus, being disqualified from receiving any benefit under the will.'
The gift of Blueacre under T's will was not an effective gift to anyone. 'There was, therefore, no beneficial interest on which the gift in the will could operate, and it was for all material purposes as though the gift had been struck out of the will.' Per Romer L.J., Ibid., at 179. Thus, in this case, no property of the person who would have been called upon to elect was in fact given away by the will upon which the plaintiff rested his case for election.
- The donor's property which is given to the elector must be freely alienable so that it could be available for compensation if the elector elects against the instrument.
It is settled that the doctrine of election does not involve forfeiture, but involves compensation out of the property which is given to the elector by the instrument, so that in the event of an elec- tion against the instrument, the elector could freely alienate that property for the purpose of mak- ing compensation to the disappointed person. See Re Wheatley (1884) 27 Ch.D. 606 at 612. It follows that if the property is not freely alienable, there is no case for election.
In Re Wheatley (supra), the donor's property was given to a married woman subject to a restraint upon anticipation. The property was given by the same instrument as that which gives rise to the question of election. Chitty J. held that the woman could not be called upon to elect, as the prop- erty given to her has, by the terms of the instrument, been made inalienable and, therefore, there was no property out of which compensation could be made to the disappointed person in the event of an election against the instrument. Where property is given in such a manner, the donor is presumed to have intended it as a personal provision and for the donee's inalienable use; to imply a condition of election in that circumstance would be to imply a condition of election against the express language of the instrument.
Thus, in Re Vardon’s Trusts (1885) 31 Ch.D. 275, a marriage settlement settled a fund for the separate use of the wife for life subject to a restraint upon anticipation; the effect of it was that the income of the fund should be paid to the Wife for her sole and separate use and that she should not have power to dispose or deprive herself of the benefit thereof: the settlement also contained a covenant by the wife to settle after-acquired property. The court held that the settle- ment contained a declaration of a particular intention inconsistent with the doctrine of election and therefore the wife could not be compelled to elect between after-acquired property and her interest in the settled fund, but was entitled to retain both as her income from the settled fund had been made inalienable by the terms of the settlement.
The principle is that the property must be freely alienable for purposes of making compensation as at the time the donee is called upon to elect. In Haynes v. Foster (1901) 1 Ch.361, Kekewich J., held that the restraint on anticipation did not become wholly inoperative against alienation if, at any time during her enjoyment she had become discovert by reason of the death of her husband; therefore, she could not be called upon to elect. The rationale of this decision is that the restraint on anticipation was operative as at the time she was being called upon to elect. But in Re Tongue (1915) 1 Ch.390, followed in Re Hargrove (1915) 1 Ch.398, it was held that the presumed in- tention of the donor was that the restraint on anticipation should be limited to the period under coverture, so that a spinster to whom an interest with a restraint on anticipation during coverture had been given by the same instrument which gave rise to the question of election, must elect.
Even in Re Hargrove (supra) at 407, where the restraint on anticipation was not in terms confined to coverture, the spinster was put to election. As Astbury J. observed in that case 'the imposition of a mere future restraint on anticipation is no bar for their doing so, and does not, therefore, pre- vent the doctrine of election from applying to them'.
- The Elector's Property which the Donor Purports to Dispose of must be Freely Alienable
The principle on which the doctrine is based is that a man shall not be allowed to approbate and reprobate, and that if, he approbates he shall do all in his power to confirm the instrument which he approbates. See Re Lord Chesham (1886) 31 Ch.D. 466 at 473. Therefore, where the elector takes in favour of the instrument he must transfer his own property which the donor purports to dispose of, in accordance with the wishes of the donor. Election in this respect presupposes that the person who is being called upon to elect has a freely disposable interest in his own property which he can alienate in compliance with the donor's wishes, otherwise there is no case for elec- tion.
Thus, there is no case for election where the property sought to be disposed of is a family mem- ber's interest in a family property. This is because under customary law a family property is indi- visible and a member of the family has no alienable interest in the family property; (Ogunmefun v. Ogunmefun (1931) 10 N.L.R. 82) or where the property is owned by a married woman subject to an operative restrain upon anticipation. See Re Wheatley (1884) 277 Ch.D. 606. Election means free choice, it follows that the doctrine cannot be introduced where it is impossible for the person against whom it is pleaded effectively to exercise the election demanded.
In the leading case of Re Lord Chesham (supra) at 472, T by his will gave certain chattels upon trust for sale for the benefit of A and B and gave the residue of his estate to C. The chattels were in fact to be enjoyed by C with a land the subject-matter of a trust of which C was a tenant for life. The question was whether C could be called upon to elect. The court found that if C elected in favour of the will as he was entitled to do under the doctrine of election, he had no disposable in- terest in the chattels which he could make over to A and B it was, therefore, held that C could not be put to his election.
Chitty J. said-
“In effect it is the paramount title of the trustees, who are not affected by any question of election, rather than the restricted interest of C, which prevents effect being given to the bequest of the chattels. A court of Equity never decrees an act to be done which is a breach of trust, or a mere idle act which could only lead to litigation. And inasmuch as no assignment by C of his interest could be framed which would not be a breach of trust, or which could confer any benefit on A and B, it would not order him (C) to execute any as- signment of the chattels for the purpose of confirming the will.”
C, not being able to make an assignment of the chattels because he had no assignable interest in them, took the residue given to him by the donor without compensating A and B.
Similarly, in Brown v. Gregson (1920) A.C. 860, the property of the person being called upon to elect was foreign land and by the lex situs, the owner of the land could not deal with it in the manner directed by the donor; the House of Lords held that in that circumstance there was no case for election; election does not arise where the donee cannot give effect to the instrument. There is no question of compensation since compensation is only made where it is possible to elect (Re Lord Chesham (supra) at 476; otherwise it would amount to an application of the doc- trine of cypres to the doctrine of election. See Brown v. Gregson (1920) AC. 860 at 877; per Vis- count Finlay.
In Re Dicey (1951) 1 Ch. 145 at 154, the defendant objected to election on the ground that the ob- ligation to elect is limited to cases in which the party so bound, if he elects in favour of the in- strument is able to make the other relevant provisions take effect precisely accordingly to their terms. In that case the defendant, who had received some benefit under the donor's will, was only a part-owner of the property which the donor purported to give to the plaintiff so that if he the defendant elected in favour of the instrument he would have been able to benefit the plaintiff on- ly in respect of his own share of the property while the other part would remain outstanding in his co-owner who was not affected by the question of election.
Romer L.J. held that the defendant must elect. The court observed that the obligation to elect does not depend upon the power of the elector to secure that the other relevant disposition in the instrument takes effect according to its exact terms. The principle of election is that if the elector elects in favour of the instrument he shall do all in his power to confirm the instrument which he approbates; he is not required to conform to all the relevant provisions, in as much as he confirms the instrument so far as he can and gives up to the disappointed person any of his own beneficial interest that he can freely dispose of in the property which the donor sought to give away.See Re Lord Chesham (supra) at pp. 472-473.
Thus, a testator gives Blackacre or the proceeds of its sale to A. Blackacre in fact belongs to B, C and D as joint tenants and the testator gives legacies to each of these persons. Each of them has a separate and individual right and obligation to elect for or against the will, notwithstanding that the gift to A can only take full effect according to its terms if B, C and D all elect in favour of the will. In other words, a class is not exempted from the principle of election merely because each can contribute only a part of the total subject-matter of the gift which the testator-donor has pur- ported to effect. Re Dicey (supra) at pp. 158-159. See further Fytche v. Fytche (1868) 7 Eq. Cas.
494.
The principle is to secure a just distribution not necessarily in the precise terms of the instrument but in substantial accordance with the general scheme of the instrument. Per Viscount Haldane in Brown v. Gregson (1920) AC. 866 at 868.
- The Donor must Manifest a Clear Intention on the Face of the Instrument to Dispose of the Elector's Property
Where the instrument manifests an intention on the part of the donor to dispose of the elector's property, the doctrine operates and it is immaterial that the disposition was by mistake or by de- sign. See Welby v. Welby (1813) 2 V. & B. 187, 199; 35 E.R. 296. The principle is that the donor intends that his instrument shall take full effect. Thus, in Cooper v. Cooper (1874) L.R. 7 H.L. 53 at 78, T, by her will gave Blackacre to X and at the same time gave a legacy to Y. At the time the will was made Z was entitled to the proceeds of Blackacre. Z predeceased T; on Z's intestacy, Y became his sole next-of-kin and, therefore, entitled to Blackacre. On T's death the question was whether Y should elect between Blackacre and the legacy. It was held that he must elect. In that case, Lord Moncreiff said 'It is quite fixed that it is wholly immaterial whether the testator thought that he had the power to convey the property, or knowing that he had not the power, usurped it. The rule in regard to election is in either case precisely the same'.
The general scheme of disposition as contained in the instrument must be capable of raising a general intention on the part of the donor that effect shall be given to every part of the instru- ment. Thus, the doctrine of election rests, not on the particular provisions of the instrument which raises the election, but on the presumption of a general intention in the maker of an in- strument that effect shall be given to every part of it. See Re Vardon’s Trusts (1885) 31 Ch.D.
275 at 279. The mere fact that the circumstances which give rise to election could not have been in the contemplation of the maker of the instrument is not sufficient to repel the general and presumed intention. Thus, in Cooper v. Cooper (supra), the elector's property which was given away was not owned by the elector at the time the instrument which gave rise to election was made and, the circumstances, and the events which subsequently vested the ownership of the property in the elector were such that could not have been contemplated by the maker of the instrument.
However, the general and presumed intention is conclusively repelled by an expressed declara- tion, contained in the instrument, that in no case should the doctrine of election be applied to the provisions of the instrument. Re Vardon’s Trust (supra) at 279. Similarly the doctrine of elec- tion is excluded where the instrument itself merely denotes of a particular intention which is in- consistent with the general and presumed intention which is the foundation of the doctrine. For example, if an instrument contains a provision such that, if the donee were put on his election and by electing he would be doing precisely what the instrument prohibits him from doing, such a provision denotes a particular intention inconsistent with the general and presumed intention which gives rise to election, and therefore excludes the doctrine. Such is the case where a mar- ried woman is given property in restraint on anticipation. See Re Vardon’s (supra) at 280.
The general and presumed intention of the donor to dispose of property over which he had no control must appear on the face of the instrument which is alleged to have made such disposition. There is no law which entitles a person to dispose of the property of another without his consent. No one can give what he does not own. However, for the purposes of election, whether or not there is such intention depends on the construction of the instrument. Once it is clear from the instrument itself that the author of the instrument intends to dispose of property which does not belong to him, that is sufficient for purposes of election. Where the donor employs general words in describing the subject-matter of the property and thereby creating some uncertainty as to the property he intended to dispose of, parol evidence is admissible with a view to identifying the property; parol evidence is, however, not admissible to show that the donor employed general words in disposing of the property because he believed himself to be the owner-this is to prevent evidence of intention that is not raised by the instrument itself. See Doe d. Oxenden v. Chiche- ster (1816) 4 Dow. 65 at 90; 3 E.R. 1091.
Where a donor, by an instrument purports to dispose of property, it is presumed that he intends to dispose of property over which he has control. A man must be presumed to have intended to give what he actually possessed. The onus of proof lay on the person who alleged the contrary. See Turner, L.J. in Evans v. Evans (1863) 2 New. Rep. 408, 410. Accordingly, where a donor has a li- mited interest in property forming the subject-matter of a gift the presumption is that he intends to dispose only of that interest; and the court will construe the instrument in the light of this in- tention, for, the intention to make a disposition extending beyond that interest cannot be made sufficiently clear to raise a case of election by anything short of positive declaration. See Wintour v. Clifton (1856) 8 De G.M. & G. 641 at 650-651; 44 E.R. 537.
However, in certain circumstances particularly in the case of a will, the court may gather an in- tention by the testator to include property belonging to another in a gift of residue. Thus, in Re Allen (1945) 2 All E.R. 264 at 267-268, the testator made a general gift of residue in which he on- ly had a limited interest, in that he held it jointly with his widow who was a beneficiary under the will. The question was whether the gift of 'the residue of my property' was limited to the testa- tor's own share of the joint estate or was intended to include the widow's share so as to put the widow on her election. Cohen J., in the course of his judgment in which the widow was put to election, said - 'I readily accept that a mere general devise or bequest would not of itself raise a question of election, but I cannot regard this passage as concluding the matter. The question whether a beneficiary under a will is put to his election depends on whether the testator has pur- ported to dispose of his or her property. This must depend on the construction of the will as a whole, and if I am satisfied that upon the proper construction of the will as a whole the residuar gift included property of a beneficiary, it must follow that the beneficiary is put to his election.'
SELF ASSESSMENT EXERCISE I
List the essentials of the doctrine of election.
Other Relevant Points
Derivative Interests:
(1) Where a testator sought to dispose of property which does not belong to him and that proper- ty was derivatively acquired through some one who could not be put to election, there will be no case for election. Thus in Grissell v. Swinhoe (1869) L.R. 7 Eq. Cas. 291, T, by his will sought to dispose of a married woman's property and at the same time conferred some benefits on her hus- band, who subsequently on the death of his wife became entitled to his wife's property including the one T sought to dispose of. The court held that there was no case for election against the hus- band; the wife, through whom he derived title to the property which T sought to dispose of, could not be put to her election, because she did not receive any benefits under T's will, and se- condly, the property was not his at T's death when T's will became operative.
(2) Where a person who had the obligation to elect had elected such election would be binding on him and whosoever takes under him. But there may be difficulties if he dies without having elected. If the elector's property devolved in one direction, his successor would be standing in his shoes and would be called upon to elect. See Fytche v. Fytche (1868) L.R. 7 Eq. 494. In Coop- er v. Cooper (supra), T gave property to A and devised A's property to C. A died without having elected and all his property devolved on B. It was held that B, being the person standing in A’s place, must elect. But where the elector's properties devolve in different directions, there is no case for election; however, the obligation to compensate the disappointed person falls on the per- son who succeeds to the benefits out of which compensation would have been made to the disap- pointed person if he had elected against the instrument in his life time.
In Pickersgill v. Rodgers (1876) 5 Ch.D. 163 at 173, the donor, by her will, bequeathed J's mon- ey to X and gave her own property Blueacre to J who died without having elected. By his will, J gave his personalty to A and devised to Y. The question was whether the duty to pay compensa- tion to X, the disappointed legatee under the donor's will, fell on Y to pay it out of the Blueacre or whether it was to be paid by A from J's personal estate bequeathed to him. Jessel M.R. held that (on the principle that the person taking the property so devised or bequeathed takes it subject to an obligation to make good to the disappointed legatee the sum he is disappointed of) the duty to pay compensation to X, the disappointed legatee fell on Y, being the beneficiary of Blue acre out of which compensation, would have been paid by J had he elected in his lifetime. 'The very instrument which gives him (Y) the benefit, gives him the benefit burdened with the obligation. X, the disappointed person, had an equitable charge or right to realise out of that property the sum required to make the compensation.
It follows that the estate of the elector who died without having elected, is not exonerated from the payment of compensation for which the elector would have been liable had he elected in his life time. The value of that liability would have to be ascertained by an inquiry as to the amount of benefits which the elector received in his lifetime under the will of the donor, and the liability is to be discharged only to the extent of the benefit derived by the elector under the donor's will.
Thus, if the value of elector's property of which the donor sought to dispose exceeds the benefit conferred on the elector by the donor's will, the elector's successor in title to such benefit is not under any obligation to pay more than the value of that benefit even though he received some other benefits out of the elector's estate. See Rogers v. Jones (1876) 3 Ch.D. 688. For example, if the elector's property of which the donor sought to dispose is valued N1000 and the benefit con- ferred on the elector under the donor's will is worth N500, the amount of compensation payable to the disappointed person will not exceed N 500.
Time to Assess the Value of the Property of the Elector for the Purposes of Compensation
Where a donee under a will is put to his election and he elects to take against the instrument, he has a duty to compensate the legatee or beneficiary who is disappointed by such election. The amount of compensation payable is the value of the elector’s property of which the testator sought to dispose, and, the value of the property is to be ascertained as at the date of the testator's death and not when the election is made. See Re Hancock (1905) 1 Ch. 16.
Satisfaction and Election:
A beneficiary under a will is put to his election, that is, to give effect to the will as a whole, on the principle that the testator has conferred some benefits on the beneficiary and at the same time attempted to dispose of the beneficiary's property. Where the benefit or legacy given to the bene- ficiary is in satisfaction of a debt, there can be no election, for, no benefit has in fact, been con- ferred on him. But if the legacy was in satisfaction of a statute-barred debt, such legacy is gener- ally regarded as a bounty, for the testator has no legal obligation to pay the debt, therefore, the beneficiary is bound to elect. Re Fletcher’ s Settlement Trusts (1936) 2 All E.R. 236, 239.
Rights of Elector:
Whenever a person is put to his election, the court has jurisdiction in equity to compel a final election 'so as to quiet the title of those interested in the objects of which one is to be chosen.' See Douglas v. Douglas (1871) L.R. 12 Eq. Cas. 617 at 637; See further, Gretton v. Howard (1819) 1 Swans. 409; 36 E.R. 443. However, as a condition precedent to the exercise of this ju- risdiction, the court will secure to the elector, the right to all information necessary to guide him in his choice. Douglas v. Douglas (supra). He must be given a genuine opportunity of ascertain- ing the relative values of the properties before electing in favour or against the instrument. He is even entitled to bring an action with a view to knowing the nature and extent of his rights and to ascertain the relative values of the properties between which he is called upon to elect. See Bu- tricke v. Broadhurst (1790) 1 Ves. Jun. 171; 30 E.R. 286; Worthington v. Wiginton (1855) 20 Beav. 67, 74; 52 E.R. 527. In Kidney v. Coussmaker (1806) 12 Yes. 136 at 153; 33 E.R. 53, a widow-elector was held not bound by an election made under a mistaken impression of the ex- tent of the claim against her.
Election may be Express or Implied:
Election may be express or may be implied from the acts or conduct of the person bound to elect; whether or not a person bound to elect has elected is a question of fact. In the case of express election, a communication by the elector to the affected party of his intention to pay compensa- tion is a sufficient evidence of his election against the instrument. Similarly, there would seem to be an express election where an elector transfers, in accordance with the directions in the instru- ment that gives rise to election, his own property of which the donor sought to dispose, to the person to whom the property was purportedly given by the instrument, and he at the same time accepts the benefit conferred on him by the instrument.
It is more difficult to establish implied election since the fact of election must be clearly estab- lished; moreover, there does not seem to be any general principle indicating all the circumstances necessary to prove or constitute an election. However, to infer an election, there must be clear proof that the person called upon to elect knew that the donor had not the power to give the prop- erty which he purported to dispose of, and that he the elector is the owner of that property. There must be evidence that the elector was aware of the gift made to him by the donor; also he must know the relative values of the properties between which he is called upon to elect; he must know that in equity he must have to elect between the two; and that having that knowledge the elector made a deliberate choice with the intention of making it. See Dillon v. Parker (1818) 1 Swanst, 359; 36 E.R. 422; Sweetman v. Sweetman (1868) 2 I.R. Eq. 141; Spread v. Morgan (1865) 11 H.L.C. 588.
It follows that the mere fact that a person, who is bound to elect, continues to enjoy the two properties may not be a conclusive inference that he intends to elect against the instrument if he was not aware of his rights. See Padbury v. Clarke (1850) 2 Mac. & G. 298, 306; 42 E.R. 115. Nevertheless, 'from a long course of leading, from a series of acts, the court is at liberty, as an inference of fact, to conclude that the party called upon to elect knew his rights, knew the value of both estates, and knew the rule of equity, that he was bound to elect, and had, with the full knowledge, made his choice, with the intention of making it, and of electing between the two es- tates'. Per Chatterton V-C, in Sweetman v. Sweetman (supra). The series of acts or dealings from which election is to be implied must be consistent only with that of an elector who was fully aware of his rights. Dillon v. Parker (1818) 1 Swanst. 359 at 380. The burden of proof is on the party who alleges implied election. See Sweetman v. Sweetman (supra); Spread v. Morgan (1865) 11 H.L.C. 588.
Time to Elect:
Prima facie, there is no time limit within which election is to be made; but a time limit may be specified or imposed by the instrument or by the court. Where there is such time limit, a person who is bound to elect but fails to elect within the time stipulated is deemed to have elected against the instrument, and will be under a duty to compensate the disappointed person. See Streatfield v. Streatfield (1735) 1 Swanst. 447; 36 E.R. 459.
Where there is no time limit for electing, failure to elect for a considerable length of time per se will not imply an election, thus a person bound to elect may continue with the enjoyment of the property given from him, as he had been doing before the operative date of the instrument by which the donor purports to dispose of the property to another; but if by such continuous act of his, so long a time has elapsed that it can reasonably be inferred that he has acquiesced in the other's enjoyment of the property given to him by the instrument and that it would be inequitable to disturb such other's enjoyment, he may be said to have elected to take, not his own property and making compensation, but what the will gives to him, that is permitting the specific enjoy- ment of his own property under the will. See Tibbits v. Tibbits (1816) 19 Ves. 656 at 663-664; 34 E.R. 659.
Who may elect:
Any person who is sui juris, and who is mentally sound is capable of electing. Where an infant is bound to elect, the court usually elects for him after an enquiry as to what is best for the infant in the circumstance. See Seton v. Smith (1840) 11 Sim 59 at 66; 59 E.R. 796. A similar course of action is followed in the case of a person of unsound mind. See Wilder v. Piggott (1883) 22 Ch.D. 263 at 269.
4.0 CONCLUSION
Election may be express or may be implied from the acts or conduct of the person bound to elect. The essentials of election are firstly that there should be an intention on the part of the donor to dispose of certain property; secondly the property should not in fact be the donor's own property; and thirdly, a benefit should be given by the disposing instrument to the true owner of the property.
5.0 SUMMARY
In this unit, we have considered the doctrine of election. You should now be able to: explain the doctrine of election; enumerate the judicial basis of the doctrine; and list the essentials of the doctrine.
6.0 TUTOR-MARKED ASSIGNMENT
Enumerate the judicial basis of the doctrine of election.
7.0 REFERENCES / FURTHER READING
Hackney J., (1987) Understanding Equity and Trusts; London: Fontana press
Jegede M. I. (2007rep.) Principles of Equity; Ibadan: Unique Design/Prints