FLK 2 Mocks Flashcards
Can trusts be partly void for one of the 3 certainties?
Yes
- eg. successive trusts where not clear distinction of what is for life vs remainder man
- eg. district shares where one beneficiary is clear but another is not
Difference between citation: 1. to take probate and 2. to accept or refuse grant?
- Citation to take probate
- when executor has lost right to renounce probate - Citation to Accept or Refuse Grant
- used to clear of a person with prior right to any grant (inc. executor) who has NOT APPLIED and shows no intention
Limit on adducing hearsay evidence due to witness not attending?
If there is no significant reason why then cannot attend
- such as wanting to go to work instead
What penalty can HMRC impose for lost tax revenue?
- If careless error
- max of 30% of lost revenue as penalty (plus recover amount due)
- can be lessened - Deliberate
- up to 100% penalty
Two people rob a shop by holding the person up at gun point? Only A is using gun whilst B takes the cash from the till? What can B be charged with?
Can be charged with robbery as have AR and MR even though not using the weapon themselves. (co-principles)
What court are co-defendants tried?
Both together always at the court of the one with the most serious offence?
- so if one is charged with indictable only then both still go to crown court
What is the tax point for VAT?
- Generally when goods made available /service performed (goods dispatched or delivery date)
- If goods paid for before that date then payment date used
- If VAT invoice issued within 14 days after basic tax point then that date used
VAT for buildings?
- Commercial Buildings less then 3 years old
- standard rated supplies - Commercial Buildings over 3 years old
- exempted supplies
- can have option to tax - Residential Buildings
- exempted
When can back use possession proceedings?
Only when power of sale is exercisable
MEANS
- After date to redeem AND EITHER
> interest payment more than 2 months in arrears
> written request for capital and not paid in 3 months
> there is breach of some other term of mortgage
s. 9(1b) Burglary
AR
- enter building or part of building as trespasser
MR
- knowing or reckless as to being trespasser
Once entered
- steal // attempt to seal
- inflict GBH // attempt to commit GBH
What is the BEST way to cheque for both business and client money?
Pay into client account promptly and then move business money to business account promptly (maybe 14 days)
NOT splitting cheque as law firms done like this
What to do if acting for buyer of house who suspects there is a non owning occupier (not on PIF)?
Ensure that non-owner signed contract of sale
Courts power to exclude evidence obtained when police breached PACE?
MAY exclude if it would have an adverse effect on fairness of the proceedings
- generally if police breaches makes it unreliable
When can fair dealing happen
Trustee
- pays full market price
- makes full disclosure
What defences are available for attempted murder?
None
Where does criminal prosecution begin for different types of offences?
ALWAYS Magistrates
When is 3rd party to breach of trust liable?
If did not act as an honest person would under circumstance
When does defendant have to disclose defence statements?
NOT at Magistrates
Yes at crown court
Can you get consent for self dealing?
No - remains voidable by beneficiaries
When can someone living abroad be considered a UK resident?
UK Resident for CGT purposes if you are working full time in the UK (even if not living in UK)
If you fail to make declaration of trust in land what effect does this have?
- Validity of trust
- still valid provided you declaration is manifested - Enforceability
- not enforceable as declaration not evidences
What is best practice for transfer documents for land?
Should use an independent witness (best practice)
– otherwise HMLR may not accept it
When will trustees be held to higher standard for duty of care (professional trustees)?
Either if:
- they have skills/experience relevant for managing a trust (lawyers); OR
- are being paid for role as trustee
How must client money be held?
- Generally in client account
UNLESS
- exception that permits them to pay into separate account to comply with other role
- for example into separate duty ship account to comply with deputyship role
What should be done if client money is held in an account for a long time with no clear ongoing matters?
BREACH as not returned promptly as soon as there was no longer any proper reason to hold funds
> must be held for legal services/further legal services required by client
MUST
- breach must be corrected promptly on discovery
- must pay back balance to client AND all interest
When is notice of severance deemed to be delivered/not delivered?
Deemed to be delivered if sent by registered post and NOT returned to sender undelivered
What is the deadline of enforcement for no planning permission for change of use into single dwelling?
4 years
When can you use confidential information on a clients case that you find? (if it would help them)
Need clients consent as otherwise might breach Duty of Confidentiality by using info
What disclosure is required from defendant in criminal proceedings?
Crown and Magistrates
- must supply list of proposed witnesses
Failure
- means that court and opposition can draw an adverse inference
Can a defendant call witness not previously disclosed at trial?
Should
- serve amended notice
IF NOT
- court and opposion can draw adverse inference
What is the effect/rules of defence making application for disclosure from prosecution?
Prosecution must either:
- be at hearing; OR
- have 14 days to make representation
Describe solicitors duty as to informing on price?
Must provide general stable of potnetional costs including hourly rates and expenses, without giving precise details
Must continuable update
Interest that must be paid on client money?
Firm must account to client for a fair sum of interest (unless written agreement of different arrangement)
Exception
- Money held in a SDDCA must pay client all interest earned in account
- Money held in general client account firm should apply its interest policy to calculate fair sum in lieu of interest
Effect of someone committing crime during suspension time of suspended sentence?
Court is required to activate suspended term in whole or party UNLESS it would be unjust
What documents to check to identify whether planning permission has been obtained?
Local Land Charges Register even though this should be mentioned in the PIF
What property is presumed to apply to term of a will?
Property at time of death
- my book collection = all books at time of death
EXCEPTION
- can show contrary intention if mention specific object
- eg. my book shelf = book shelf at time of execution
Magistrates court process for allocation?
- prosecution given opportunity to inform court on previous convictions
- court gives prosecution and woman opportunity to make representations as to which type of trial is suitable
- In making its decision court must consider adequacy of its sentencing power, representations or parties and allocation guidelines issued by Sentencing Council
Wrongful mixture in bank account what happens if new money is deposited by trustee?
This is not recoverable as trust money
UNLESS can prove this was intended to be repayment for trust funds spent
Unlawfull act manslaughter?
Must be:
- base offence that is unlawful
- objectively dangerous; and
- caused the death of the victim
Must only prove
- AR and MR of base offence
Rules and process of bank reconciliation?
Every 5 weeks
- checking bank statements for firms client AND business accounts against firms internal record
- signed off by COF????
What are SRA Rules for accounting records?
- must be stored securely
- retained for at least 6 years
What inference can court draw in general?
any inference that court deems proper
Is oblique intent a form of MR?
Not really. More a way of finding MR for specific intent crimes
Mortgages duties when selling land after exercising power to sell?
Duty to:
- obtain true market value at time of sale
- accurately advertising land
Has discretion
- of when and how to sell land
What types of accounts can firm use for client money?
- Joint account permitted in certain circumstance:
- if solicitor is appointed as executor along with other executors not employed by firm - Can outsource management of money to 3rd party managed account
- if it does not operate own client accounts
- but money held in it is not client money - SDDCA
What is requirements for separate designated deposit client account (SDDCA)?
This is an account that a firm may open for an individual client
- separate from the general client account
- designated in the name of an individual client
- a deposit account which will earn more interest on the client’s money than if it was held in the general account;
- labelled as a ‘client’ account in accordance with Rule 3.2(b)
Can a client submit multiple contract to multiple bidders when selling land? Effect on solicitor?
No this is a contract race
Solicitor MUST cease to act as would breach requirement not to abuse position
Action
- should seek client consent to tell bidders of contract race
- if no consent should cease to act (to not mislead or breach client confidentiality)
Who can impose a referral order?
Only youth court and adult magistrates court
NOT crown court
What is a grave crime
One
- that does not have term of imprisonment fixed by law but can be punished by imprisonment for at least 14 years for an adult offender over the age of 21
Does loss of control need to be sudden?
NO
What is the small estates procedure
Permits payment by relevant organisations to be made without grant where value of the asset is up to £5000
> at institutions discretion
Applies to:
- bank
- Department of Work and Pensions
- NS&I
Payment of debts in insolvent estate?
- property undisposed of
- property gifted in residue
- property specifically given for payment of debt
- property charged with payment of debt
- pecuniary legacy fund
- property specifically gifted
- property over which PR has general power
When does review clock run after arrest?
Different to DETENTION clock
Starts when D’s detention is first authorised by custody officer
- review must be taken at 6, 9 and 24 hours
Requirements for someone to be charges as accomplice (joint enterprise)?
Mere presence not enough
- must have knowledge of essential matters and intended to assist or encourage the man to commit the more serious offence
IMPORTANT
- no need for the person who did the act to be convicted
- accomplice can still be
