Areas of difficulty

Question 1

What is the test for dishonesty to be liable for dishonest assistance?

Answer 1

If TP acted dishonestly in providing assistance to the breach

• dishonesty is an objective test based on third party’s subjective knowledge
• if there is no dishonest intent = no liability under this claim

Question 2

Liability of third party for dishonest assistance

Answer 2

The third party is likely to be liable for dishonest assistance in breach of trust because their assistance is dishonest by the standards of ordinary decent people

Question 3

How long must a law firm hold accounting records under SRA account rules?

Answer 3

All accounting records must be stored securely and retained for at least six years

Question 4

Is leave of appeal required for the Court of Appeal

Answer 4

YES
Appeal from the Crown Court to the Court of Appeal - there is no automatic right of appeal

Grounds
- unsafe conviction
- sentence is manifestly excessive

Question 5

What is the appeal process for appeals from Magistrates’ Court to Crown Court

Answer 5

For a Crown Court re-hearing, there is an automatic right of appeal and no leave is required

Notice of appeal must be lodged within 15 business days of sentence (not conviction)

Question 6

Can a trustee be removed from their position as trustee for moving abroad (by the other trustees)?

Answer 6

Only if their absence from the UK is for a continuous period of 12 months of more

Question 7

Can someone commit aggravated criminal damage to their own property?

Answer 7

Yes

Elements
- destroy or damage property (AR)
- with intention or recklessness as to destruction or damage of property and as to the endangerment of life

• It is irrelevant whether life was actually endangered

Question 8

What is the statutory legacy the spouse is entitled to under intestacy (where intestate dies with spouse and issue)

Answer 8

£322,000
- plus personal chattels
- one half of residue if any absolutely

Question 9

What is the limitation period for breach of trust?

Answer 9

Claim must be brought within 6 years from breach of trust
- where beneficiary’s interest is vested in possession at the time of breach
- where there are future interests - limitation period only runs when interest vests in possession

• limitation period only applies to personal claims
• does not apply to proprietary claims or to fraudulent breaches

Question 10

How much rent prior to default notice being served will a tenant be liable for?

Answer 10

Only six months’ rents arrears
- cannot be liable for more than six months

Question 11

What is the solicitor’s obligations regarding a contract race?

Answer 11

• solicitor must not abuse position by taking unfair advantage of others, including potential buyers

If the client wants to engage (multiple buyers) in a contract race
- solicitor must obtain client’s consent to disclose this to the potential buyers
- if this consent is not given, the solicitor must cease to act

Question 12

Who bears responsibility to pay IHT?

Answer 12

IHT is levied on the estate of deceased and the responsibility of executors to pay the tax from assets before distributing the estate to beneficiaries

Question 13

What is referral order (youth court)?

Answer 13

Where a youth agrees to abide by a contract of behaviour which is reviewed by Youth Offender Panel and can be made by youth court and adult magistrates court, but not the crown court

Question 14

What is a grave crime?

Answer 14

An offence that can be punished by imprisonment of at least 14 years and is not fixed by law for an adult offender over the age of 21

• sometimes with reference to sentencing, an adult means over age of 21

Question 15

Defence of loss of control

Answer 15

• act in a way which is out of character
• as a result of a qualifying trigger
• question of whether there is a loss of control is for the jury
• (loss of control means) defendants must be unable to restrain themselves but the loss of control need not be sudden
• must be more than mere loss of temper

Question 16

What is bank reconciliation process?

Answer 16

At least every five weeks, the firm’s COFA must complete a reconciliation of bank statements of client and business accounts

Question 17

How long must accounting records be held for?

Answer 17

6 years

Question 18

What is the order assets should be used in to pay of estate’s debts?

Answer 18

• Property undisposed of by the will
• property gifted in residue
• property specifically given for payment of debts
• property charged fro payment of debts
• money retained to pay pecuniary legacies
• property specifically gifted
• property over which executor has general power

Question 19

When does the review clock run for detention?

Answer 19

It begins when suspect’s detention is first authorised by custody officer
- first review must take place within 6 hours after detention was first authorised
- every 9 hours thereafter
- no extension to 24 hour time limit can take place until second review has taken place

Question 20

What is the personal representatives’ liability to pay IT and CGT?

Answer 20

A personal representative is personally liable for any IT or CGT due on the estate’s income and gains, regardless of whether they distribute the assets

Question 21

Examples of evidence of detrimental reliance on assurance of proprietary estoppel

Answer 21

• claimant has been promised they can live in the home (rent free; for as long as they want)
• the claimant has other opportunities/offers to leave, but chooses not to take them, because they are relying on the assurance that they can stay in the home

–> reliance to their detriment on the assurance

Question 22

What are the grounds under which a solicitor can be excluded from an interview (role of solicitor at interview in criminal litigation)?

Answer 22

Preventing or obstructing questions being put to the client [suspect] are the only grounds under which a solicitor can be removed from the interview

• a superintendent must authorise a solicitor being excluded from interview

Question 23

What are the circumstances/issues which require superintendent authorisation?

Answer 23

• solicitor being removed from interview
• power to extend a suspect’s detention in custody by 12 hours
• power to detain the right to obtain legal advice
• where custody officer has determined the suspect requires an interpreter, the suspect must not be interviewed without an interpreter unless this is authorised by a superintendent
• urgent interview of a vulnerable person without an appropriate adult

Question 24

Can adverse inferences be drawn when suspect is interviewed without legal representation?

Answer 24

For an adverse inference to be drawn, the defendant must have been allowed the opportunity to consult a solicitor, but there is no requirement that they actually obtain legal advice

No access to legal advice = cannot draw adverse inferences

But being given access to legal advice and denying it = adverse inferences may be drawn from interview

Question 25

Will an adverse inference always be drawn at trial for failure to account for a fact later relied on? (s34)

Answer 25

If a defendant remains silent at the police station but at trial chooses to rely on a fact in their defence, adverse inferences may be drawn against the defendant's silence if the jury or magistrates consider that the defendant could reasonably have mentioned the fact during the police interview However, there will be no inference drawn if the defendant pleads guilty and therefore there is no trial, or the defendant does not put forward a positive defence at trial. - plead guilty / no trial / no positive defence = no adverse inference can be drawn

Question 26

What must the defendant be for an adverse inference to be drawn for a failure to account (s34,s36,s37) at trial

Answer 26

The suspect must actually be under arrest - cannot be attending the police station as a volunteer

Question 27

When will a written statement prevent adverse inferences from being drawn at trial?

Answer 27

If the statement covers all the matters the defendant relies upon in his defence - a prepared written statement prevents an adverse inference being drawn against a defendant at trial, provided the facts disclosed are consistent with the defence case at trial

Question 28

What are the police required to disclose?

Answer 28

- solicitor is entitled to see the custody record - any record of first description by an eye-witness - prior to interview, a solicitor must be given sufficient information to understand the nature of any offence and why the suspect is suspected

Question 29

Can a defendant charged with an indictable only offence plead guilty in the magistrates court?

Answer 29

No, if it is indictable only, it must be sent to the Crown Court - but defendant can indicate intention to plead guilty - in this instance, magistrates should request the preparation of a pre-sentence report to use in the Crown Court

Question 30

How does the court consider the seriousness of an offence (for sentencing purposes)?

Answer 30

The court considers the defendant's culpability in committing the offence; and harm caused or intended

Question 31

What is a benefit of the LTA 1954 for a tenant?

Answer 31

If the tenancy has the benefit of LTA 1954, it will continue indefinitely past the contractual expiry date, until it is terminated by either party serving notice in accordance with LTA 1954 - if a tenant wishes to remain in occupation in the short term without entering into new fixed term tenancy, it should take no action and continue to occupy due to the benefit of continuation tenancy

Question 32

Who bears the cost of an easement?

Answer 32

When an express easement is created (e.g., servient land owner grants dominant land owner a right of way (driveway) over their land) - it may include covenants as to who will repair or maintain and bear the costs of the easement (e.g., the driveway) Where payment obligations have not been set out: - dominant landowner has the right to enter servient land and construct the right of way and must bear whole costs - servient landowner has no obligation to maintain or repair it - neither party can seek a contribution from the other

Question 33

How do you calculate the value of quoted shares for a deceased estate?

Answer 33

- Take the lower of the two prices on the Stock Exchange list (e.g., 50p) - Add one quarter of the difference between the two prices 54p - 50p = 4p 1/4 = 1p - Add the difference to the lower of the two prices Add 1p to 50p = 51p If there are 1,000 unquoted shares = £51,000

Question 34

What is a fully secret trust?

Answer 34

A fully-secret trust is created when testator leaves in their will property to a certain person, and that person has agreed that they will hold property on trust for another person If the trustee does not fulfil the testators wishes, by not passing the property onto the intended beneficiary: - beneficiary will receive their share as the trustee is estopped from asserting title to the property

Question 35

What are the requirements of a fully secret trust?

Answer 35

a) intention of testator to establish a secret trust b) intention was communicated to trustee before the death of the testator comes into effect c) acceptance of that obligation by the trustee

Question 36

How many administrators need to be appointed where there is a minor interest?

Answer 36

In respect of letters of administration - only one required - unless there are minor or life interests in the estate - grant of letters of administration: appoint at least two person, unless it is practicable to appoint only one as sole administrator

Question 37

When must prosecution serve initial details of prosecution case?

Answer 37

As soon as practicable and in any event no later than the first day of the hearing - at the latest, at the start of the first appearance

Question 38

What are trustees powers of delegation?

Answer 38

s11 TA 2000 - trustees have broad powers of delegation - they can delegate their powers of investment and powers to acquire land But - cannot delegate distributive obligations - cannot delegate decisions to beneficiaries

Question 39

How must trustees delegate their investment powers?

Answer 39

Trustees cannot delegate their investment powers except by an agreement evidenced in writing

Question 40

Will trustees be liable for negligence caused by the appointed agent?

Answer 40

Trustees must comply with the statutory duty of care when selecting agents to delegate their powers to: - appropriate agent selected - agreement complies with statutory requirements (in writing) - arrangement is regularly reviewed If trustees comply with these duties when exercising power of delegation, they are NOT liable for any losses caused by agent acting negligently

Question 41

What happens to the income where a beneficiary has a contingent interest which is not yet vested (e.g., contingent on beneficiary reaching age of 25)?

Answer 41

- under age of 18 - trustees can use power of maintenance to use income for the minor - once the beneficiary reaches age of 18 - the trustees must cease making maintenance payments and instead pay the income to the beneficiary until they reach the contingent age (25) and their interest vests - trustees have a duty to pay the income from the trust property to the beneficiary until their attain a vested interest Contingent beneficiary is entitled to the income. Also entitled to the trust assets, despite interest not yet being vested

Question 42

What do the words "equally" or "equal shares" or "to be divided" in the conveyance or transfer deed suggest as to how equitable title is held?

Answer 42

These are words of severance which suggest a tenancy in common If a transfer deed expressly states that title is transferred to five people to be held in equal shares, this means that equitable title is presumed to be held as tenants in common

Question 43

Who can appeal by way of case stated?

Answer 43

Both the defence and prosecution can appeal by way of case stated, and only on a point of law

Question 44

Difference in wording for a s20 and s18 OAPA offence?

Answer 44

s20 - inflicting GBH s18 - causing GBH with intent (note the reference to intent)

Question 45

Where will a buyer's solicitor confirm the quality of the title held by the property?

Answer 45

The Proprietorship Register - if seller states the property holds an absolute title - check this in proprietorship register - records the grade of title: absolute, possessory, qualified

Question 46

What information is found in Property Register?

Answer 46

- describes the property - any rights benefitting it Details: - property address and title plan - freehold or leasehold - any rights: rights of way

Question 47

By which date must SDLT be reported to HMRC?

Answer 47

Within 14 days of the completion date (or date of actual occupation, whichever is first)

Question 48

When can a seller cancel insurance policy if they are responsible for insurance from exchange to completion?

Answer 48

The seller may cancel the insurance policy on completion unconditionally - no obligation to notify the buyer or to ensure they have their own insurance policy in place Note - SCPC would mean the buyer is responsible for insurance - this is only the case where this provision has been modified

Question 49

What are trustees disclosure obligations?

Answer 49

Trustees are required to provide the beneficiaries with accounts (if they request), but not any confidential information - Trustees must always be prepared to produce accounts to beneficiaries - to allow beneficiaries to enforce the trust, they must receive sufficient information about trust assets

Question 50

What information are beneficiaries of a trust entitled to?

Answer 50

All reasonable information about the way trust assets are managed and invested, beneficiary's entitlement to their interests, disclosure of 'trust documents' But, trustees do not have an obligation to provide or disclose confidential information

Question 51

How is a lifetime trust or gift of chattels given?

Answer 51

A gift of chattels (jewellery, car, paintings, etc...) if given when: - there is a clear, unambiguous and unequivocal intention of the owner to transfer the property to the recipient; and - this is accompanied by something which constitutes an act of delivery or change of possession E.g., handing over only set of car keys and gifting the car to a friend = valid gift

Question 52

When does the chain of representation apply?

Answer 52

If the last surviving executor dies having appointed an executor (E1) of their own estate and this person takes out of the grant of probate of their estate (E2) - chain of representation only applies where there is a sole surviving executor, who has taken out a grant of probate and who dies before administering the estate

Question 53

In negotiation of terms of a new lease under LTA 1954, what the court's powers?

Answer 53

If following s25 or s26 notice, the landlord and tenant cannot agree to terms, the court can grant a new tenancy on any such terms as it determines under LTA 1954, for a term not exceeding 15 years The court can grant a term of up to 15 years - the court can grant any terms it determines, not exceeding 15 years - rent will be open market

Question 54

Registration at the Land Registry must take place within 30 days of which date?

Answer 54

The date of the result of the OS1 search, to avoid subsequent entries being made on the title which bind the purchaser

Question 55

What happens if a defendant breaches their bail condition?

Answer 55

They will be in breach of their bail condition and brought before the court for bail to be reconsidered - this is the case even if they claim they have reasons for the breach - the offence is failure to surrender to custody without reasonable cause --> in this offence can try to prove reasonable cause - breach of bail condition, however, is not an offence

Question 56

Under intestacy rules, is the survivor of an unmarried couple entitled to the estate?

Answer 56

NO - survivor of an unmarried couple is not entitled to any part of the estate - even if they have been cohabiting for many years However, they may have a claim under IPFDA, provided they cohabited for two years prior to death

Question 57

What are the criteria for RNRB?

Answer 57

a) qualifying residential interest: residential property b) closely inherited: under the will; intestacy; survivorship c) direct descendant: children (includes adopted children and step-children); grandchildren; their spouses Direct lineal descendants does NOT include: - siblings, parents, nieces, nephews - if testator leaves their estate including their home to nephew = no RNRB

Question 58

Is a confession admissible hearsay?

Answer 58

A confession comes under a common law exception for admissible hearsay (as long as it is not excluded by PACE) - an admission to an offence is admissible hearsay

Question 59

What is the purpose of a licence to assign?

Answer 59

Landlord, tenant and assignee sign - formalises the landlord's consent - creates privity of contract between landlord and assignee - a licence to assign can include a direct covenant by assignee in favour of the landlord to comply with the tenant's covenants in the lease for the residue of the term - outgoing tenant's AGA may be given in licence or a standalone deed

Question 60

What are the grounds under which a landlord can oppose the renewal of a tenant's lease under LTA 1954?

Answer 60

a) breach of tenant repairing obligation - discretionary - not compensatory b) persistent delay in paying rent - discretionary - not compensatory c) other substantial breaches of tenant obligations - discretionary - not compensatory d) availability of suitable accommodation - mandatory (L must have made an offer) - not compensatory f) intention to demolish/reconstruct - mandatory - IS compensatory g) L intends to occupy premises - mandatory - is compensatory