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Requirements of an assignment
In the case of Howes v Prudential it was agreed that assignment had to be in writing and that simply passing over the policy, was not sufficient for assignment to take place.
An assignment is normally done by deed of assignment but this is not a legal requirement and in Morgan v Hoford it was agreed that an exchange of letters, with offer and acceptance and proof of payment was sufficient.
The assignment must be done during the policy period and the life of the life insured. Scott v Coulson.
If it is an absolute assignment it must be the total of the policy and not just a part that is assigned. This does not mean that equitable interests can not be held in the policy but legal interest under trust can only be assigned as a whole.
The assignment must use words which are adequate to effect the assignment. If not a mere equitable assignment will be achieved and legal interest will not be assigned.
Effect of an assignment
Full legal interest absolute assignment provides the assignee with legal interest in the policy which he can surrender, alter, continue or use as security to raise a loan. The assignee should keep in touch with the life insured so that if the latter dies he will be ale to claim from the life office.
Deeds
When a deed of assignment is produced the life office must check this to see in all validity passes to the claimant (assignee).
The assignor should be the person who had legal ownership of the policy prior to the assignment. The assignee should be the person now claiming. The deed should adequately assign the policy in clear words. The date of the assignment should be within the policy period and prior to the death of the life insured. The deed should have had the stamp duty paid on it.
Under the Law of property (Miscellaneous provisions) Act 1989 a deed no longer needs to be signed under seal, it can be signed as a deed in the presence of a witness. Making ones mark as a cross will suffice as a signature.
Equitable assignments
Some assignments may act only as equitable assignments as the original assignment documentation was not done clearly or correctly enough to actually transfer legal title.
Equitable assignment does not require any special written words or documents but it needs to be clear. Under equitable assignment the assignee is basically saying that it is right that the policy benefits are mine and that was the clear intention of the parties. They do not have legal interest so can not claim against the life office on their own. They would have to claim in court against both the life office and the assignor as co–defendant. Their claim would be that there had been an equitable agreement to assign the proceeds of the life policy and they had an equitable claim against the monies but not a legal right of ownership to those monies.
These cases will stand or fall on their own merits.
In Thomas v Harris (1947) a father asked his son to put up a tomb stone in his name and handed him the life policy in payment of this service. The court held that there had been a binding contract between son and father.
In King, Sewell v Kin (1879) person ‘A’ sent several letters to indicate his intention for the equitable assignment, but no assignment document to legally transfer ownership. The courts up held the written intention.
In Williams, Willams v Ball a man left his housekeeper the proceeds under the life policy by making a written note on the policy. The court held that there was no mention of ‘gift’ nor was there any indication of consideration. They did not uphold the assignment.
Stamp duty
There used to be stamp duty on some deeds but this was abolished by the Finance Act 2003.