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1 An Introduction to Equity document cannot take effect as a will unless it is in writing and signed by the testator in the presence of at least two witnesses. 1 The formal will could not have been clearer: Eoin was to get £50,000 and nothing was said about what he should do with the money. On the face of the will, it appears that the money belongs to Eoin and he can do whatever he wants with it. But this does not seem fair: this is not what Adam wanted. Dana, his daugh ter, does not get anything under his will, whereas Adam wanted all four of his children to benefit equally. Should Eoin be able to rely on the clear words of the statute so that the letter written by Adam has no legal effect after Adam’s death, or should Dana’s intended benefit and Adam’s expectation be protected? Should Eoin be allowed to get away with this, when he knew exactly what Adam wanted? Equity provides the answers to these questions. This simple problem encapsulates what that body of law which is called ‘Equity’ is actually about. When someone seeks to rely on their strict rights in circumstances under which they can be considered to be acting unfairly, Equity might be available to ensure a just result. In this case, Eoin’s blatant disre gard of what Adam intended, when Eoin knew what Adam wanted, means that Equity will require Eoin to hold the car and the shares for the benefit of Dana. 2 1.2 WHAT IS EQUITY? At the beginning of their legal studies, Law students soon realize that there is a fundamen tal division in the legal system between law created by the legislature and law created by judges. This judge-made law is often called the ‘common law’. But ‘Common Law’, with capital letters, is used in another, more specific sense, to indicate that body of law which was made and developed by the judges in the Common Law courts, as opposed to that body of law which was made and developed by the judges in the Chancery courts. It is this latter body of law which is called ‘Equity’. 3 Equity has certain characteristics that distinguish it from the Common Law. These characteristics derive from the historical origins of Equity. 4 From medieval times, the Common Law was a rule-based, formalistic body of law that dealt with contracts, torts, and property rights, amongst other things. Where there was no remedy provided in the Common Law courts, or where the result reached by the application of the Common Law might be considered to be harsh, it was possible to petition the King, and later the Lord Chancellor, to provide a remedy through the exercise of his discretion. It was this discretionary jurisdiction that eventually developed to become the distinct body of law called Equity. Crucially, this historical relationship between Common Law and Equity indicates the two fundamental features of Equity as a body of law. First, it exists to modify the harshness and rigidity of the Common Law; 5 so Equity is characterized by flexibil ity. Secondly, Equity was founded on the exercise of the Lord Chancellor’s discretion, by reference to his conscience, and so it is a jurisdiction that is grounded on fairness, justice, and morality. You might think that any body of law that is characterized as being flex ible and discretionary is a recipe for disaster: where are the rules, the principles, and the © Oxford University Press

1 Wills Act 1837, s. 9. See Section 5.2.2(ii), p. 129. 2 See Section 5.2.2(ii), p. 138 for further analysis of this solution by reference to the doctrine of secret trusts. 3 Worthington, Equity (2nd edn, Oxford: Oxford University Press, 2006), 3–21. 4 This is considered in more detail in Section 1.3, pp. 6–8. 5 Vauxhall Motors Ltd v Manchester Ship Canal Co Ltd [2019] UKSC 46, [2020] AC 1161, [63] (Lady Arden).

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