FLK2 Flashcards
1
Q
What is Quick Succession Relief (QSR) and when does it apply?
A
Quick Succession Relief is a mechanism to reduce the inheritance tax (IHT) on an estate if the following conditions are met:
A person dies within 5 years of receiving a chargeable transfer (e.g., an inheritance) that increased their estate’s value.
IHT was paid on the original chargeable transfer.
The relief is applied as a percentage to the IHT due on the second transfer based on the time elapsed since the first transfer. If more than 5 years have passed, no QSR is available.
QSR Does Not Apply If:
The earlier transfer to the deceased person is exempt, such as transfers between spouses or civil partners.
The earlier transfer was chargeable, but no IHT was paid (e.g., it was below the nil-rate band threshold).
No IHT was payable on the second death.
The transfer occurred more than 5 years before the second death.
The composition of the second estate, including the presence of land, is not the primary factor in determining the applicability of QSR.
The specific beneficiary of the wife’s estate does not affect the determination of whether QSR applies or not (unless it was exempt).
2
Q
QSR cannot apply where spousal exemption applied
A
when the
wife later passes away and leaves her estate to her son, the PR determines that QSR does not apply to the second estate. This is because the exemption for transfers between spouses already eliminates the need for QSR in this
situation.
2
Q
What is the spousal exemption?
A
The spousal exemption allows for the transfer of assets between spouses or civil partners to be exempt from IHT. In this case, the man left his entire estate to his wife, which falls under the spousal exemption.
3
Q
How is the QSR tax credit calculated?
A
The credit is a percentage of the IHT paid on the first transfer, depending on the time elapsed:
Less than 1 year: 100%
1–2 years: 80%
2–3 years: 60%
3–4 years: 40%
4–5 years: 20%
4
Q
Does QSR apply to the estate value or IHT due?
A
QSR applies to the IHT due, not the estate value.
5
Q
Can QSR be applied retroactively to other estates?
A
No, unused QSR is lost and cannot be transferred or applied to other estates.
5
Q
What is the purpose of Section 32 of the Trustee Act 1925?
A
It allows trustees to apply trust capital for the “advancement or benefit” of a beneficiary entitled to the capital, without requiring consent from the beneficiary or settlor, and applies to both minors and adults.
Hence, an express power of advancement in the trust deed is not required.
Trustees do not need to consider the reduction in the trust fund’s value or the decrease in dividends from its investments.
6
Q
What is the trustees’ primary obligation when exercising the power of advancement?
A
Trustees must ensure the specific purpose of the advancement is followed and act with proper care (Re Becketts Settlement [1940] Ch 279).
6
Q
What is the initial detention time limit under PACE 1984?
A
24 hours from the relevant time, after which the person must be charged or released (s. 41(1)).
7
Q
When does the detention clock start for a person who was arrested after attending the station voluntarily?
A
The relevant time is the time of arrest (s. 41(2)(c)).
8
Q
How can the detention time be extended beyond 24 hours?
A
A superintendent may authorize an extension by 12 hours (up to 36 hours) (s. 42).
Further extensions require an application to the magistrates (ss. 43 and 44).
9
Q
What is a prescriptive easement, and how is it acquired?
A
A prescriptive easement is a right acquired through long use of land. It requires:
Continuous use for at least 20 years.
Use must be as of right:
Without force (not obtained through threats or coercion).
Without secrecy (open and visible).
Without permission (not granted by the landowner).
Permission defeats a claim for a prescriptive easement.
10
Q
What are other ways to acquire a legal easement besides prescription?
A
Legal easements can be created through:
- Express grant or reservation: By deed, registered at the Land Registry (legal interest arises only upon registration).
- Implied easements, including:
a. Easements of necessity: Required for the use of land.
Intended easements: Based on the intentions of the parties.
b. Easements under the Wheeldon v Burrows rule: Grants rights necessary for the reasonable use of the land.
c. Easements under Section 62 of the LPA 1925: Converts certain prior uses into legal easements.
11
Q
Why was the homeowner in this case unable to acquire a prescriptive easement?
A
The neighbour’s permission for road usage meant the use was not as of right, which is essential for acquiring a prescriptive easement.
12
Q
What is a licence, and how does it differ from an easement?
A
A licence:
Grants personal permission to use land.
Does not create a legal interest in land.
Can be revoked by the licensor with reasonable notice.
Without the licence, the use of the land would constitute trespass.
By contrast, an easement:
Grants a legal or equitable interest in the land.
May bind third parties if properly created and registered.
12
Q
What is the legal effect of permission granted by a neighbour to use land?
A
Permission creates a licence, not an easement.
The licence is a private contractual arrangement and does not confer rights that run with the land.
The landowner can revoke the licence, leaving the user without legal protection.
12
Q
Does mistaken belief in a right to use land affect the acquisition of a prescriptive easement?
A
No, a mistaken belief does not prevent the acquisition of a prescriptive easement. The key factor is whether the use was as of right.
13
Q
How is the test for a lawful excuse defence applied?
A
The test involves a subjective belief by the defendant that the property is in immediate need of protection. However, there is an objective element in assessing whether the actions taken to protect the property were reasonable in the circumstances.
The subjective test applies to the belief the defendant holds regarding the need for protection.
The objective test applies to the reasonableness of the action taken to protect the property.
14
Q
What is the lawful excuse defence under section 5(2)(b) of the Criminal Damage Act 1971 (CDA 1971)?
A
A lawful excuse defence is available if the defendant undertakes the act of damage to protect property or a right or interest in property that they believe to be in immediate need of protection. The defendant must:
Honestly believe that the property is in immediate need of protection.
Believe that the means of protection adopted are reasonable, considering the circumstances.
It is not necessary for the belief to be justified, as long as it is honestly held.
15
Q
Can a defendant claim a lawful excuse defence if their belief about the need for protection is incorrect or unjustified?
A
Yes, as long as the belief is honestly held. It is irrelevant whether the belief is justified or not. What matters is that the defendant genuinely believed in the need for protection. The actions taken will be assessed on whether they were reasonable in relation to the belief.
16
Q
How does the spousal/civil partner exemption affect inheritance tax?
A
If a person’s estate passes to their surviving spouse or civil partner, it is exempt from IHT. The surviving spouse’s NRB is then available for use in their estate calculation. If the estate is transferred from one partner to the other, and no chargeable transfers were made during the lifetime of the deceased, the estate will be eligible for this exemption.
16
Q
How is Inheritance Tax (IHT) calculated for an estate?
A
IHT is calculated by deducting available exemptions and reliefs from the total value of the estate.
The nil rate band (NRB) is £325,000, which is exempt from IHT.
If the estate qualifies for the spousal/civil partner exemption, the entire estate passing to the surviving partner is exempt from IHT, leaving the survivor’s NRB available to be used.
The remaining estate after applying exemptions is subject to 40% IHT.
16
Q
How many participants are required in a standard identification parade under PACE?
A
The parade must include nine participants: the suspect and at least eight other individuals who resemble the suspect in age, height, appearance, and position in life.
17
Q
What is the requirement for the number of participants if there are two suspects of similar appearance?
A
If there are two suspects of similar appearance, at least 12 images should be shown to the witness.
18
What must be done to ensure fairness during an identification parade?
Distinguishing features, such as scars or other unique characteristics, must be concealed to prevent identification based on those features.
19
What is the proprietorship register?
The grade of title with which the property is registered is recorded in the Proprietorship Register of the registered title. Depending on the class of title, an intending purchaser will be able to see how reliable the title is considered to be, such as absolute, possessory or qualified.
20
What is the difference between absolute, possessory and qualified title?
In the context of property law in England and Wales, the grade of title refers to the level of certainty or reliability associated with the registered title. The three main types of title are absolute, possessory, and qualified. Here's a breakdown of each:
Absolute Title:
Highest grade of title: This is the most secure and reliable form of title.
Indicates full ownership: The person registered as the owner is considered the true and rightful owner of the property.
Protection: The title is free from defects or competing claims, and no further evidence is required to prove ownership. It is conclusive proof of ownership.
Example: If someone purchases land with absolute title, they are confident that no other person has a stronger claim to the land.
Possessory Title:
Intermediate grade of title: Possessory title indicates that the person registered as the owner has had continuous possession of the land for a period of time, but the full legal ownership is not guaranteed.
Risk of competing claims: It may be that the original owner did not properly transfer the title or that there are defects in the historical chain of ownership.
May require further proof: The title is usually considered to be a temporary measure, and the registered owner might need to take further steps to establish absolute title, particularly if a competing claim arises.
Example: A person who has lived on land for a long time but cannot prove their legal title may be granted possessory title until they can obtain full proof of ownership.
Qualified Title:
Grade with restrictions or qualifications: A qualified title means that there are some issues or limitations that affect the property or the owner’s rights.
May require further investigation: This could be due to unresolved disputes, adverse possession claims, or issues with the history of ownership.
Title is subject to specific conditions: The qualification may list certain interests or claims that take priority over the title.
Example: A qualified title could be granted if, for instance, there is a potential claim to the land or some part of the title is under investigation, meaning the owner’s right to the property may be challenged.
Summary
Absolute Title is the most secure and reliable, meaning the person is recognized as the rightful owner with no competing claims.
Possessory Title indicates that the person has possession but may not have complete proof of ownership, and their claim could be challenged.
Qualified Title involves certain restrictions or qualifications that could affect the person's full ownership rights.
21
What is factual causation in criminal law?
Factual causation is established by the ‘but for’ test, which means that the harm would not have occurred but for the defendant's actions.
22
In what circumstances will a defendant not be held liable for injuries the victim sustains while attempting to escape, and how do cases like Roberts (1971) and Williams & Davis (1992) influence the chain of causation?
Where the victim attempts to escape, the defendant will not be liable for injuries resulting from the escape if the escape was unforeseeable. However, if the escape is a reasonably foreseeable voluntary escape, there will be
no break in the chain of causation in accordance with the case of Roberts (1971) EWCA Crim 4. Also, where the victim's actions were a natural result of the defendant's actions it is irrelevant whether the defendant could foresee the
result. Only where the victim’s actions were so daft or unexpected that no reasonable man could have expected it would there be a break in the chain of causation as held in the case of Williams & Davis [1992] Crim LR 198. The
actions of the wife here seem both foreseeable and reasonable. The courts have not generally accepted self-neglect by the victim as breaking the chain of causation. This was established in the case of Holland (1841) 2 Mood & R31
and the principle was confirmed in the more recent case of Dear [1996] Crim LR 595.
23
How long does the local planning authority have to serve an enforcement notice for a breach involving building operations or a change of use to a single private dwelling house?
The local planning authority must serve an enforcement notice within 4 years from the date of the breach for unauthorised building operations or a change of use to a single private dwelling house.
24
What is the time limit for the local planning authority to serve an enforcement notice for breaches involving changes of use other than to a single private dwelling house?
The local planning authority must serve an enforcement notice within 10 years from the date of the breach for unauthorised material changes of use, other than a change to a single private dwelling house.
25
Can the local planning authority take action after the time limits for enforcement have expired?
Yes, if the building work or change of use has been deliberately hidden from the local authority, the local authority can apply to the court to take action after the time limits have expired.
26
What are the conditions required for the burden of a covenant to pass in equity?
The burden of a covenant can pass in equity under the following conditions:
The covenant must be negative: This is determined by the substance of the covenant rather than its form. For example, a covenant not to build on land is negative, while covenants involving the expenditure of money (e.g., repairing shared property) are positive and do not pass in equity.
The covenantee must retain land benefitting from the covenant: There must be two pieces of land— a dominant tenement that benefits from the covenant and a servient tenement that bears the burden. The covenant must be made for the benefit of the covenantee’s land.
The covenant must “touch and concern” the covenantee’s land: This means that the breach of the covenant must affect the use or enjoyment of the covenantee’s land in some way. The covenant must relate directly to the land.
The purchaser must have notice of the covenant: The burden of the covenant can bind a subsequent purchaser if the purchaser had notice of it when acquiring the property. The principle of equity ensures that a purchaser who is aware of the covenant at the time of purchase will be bound by it, even if they did not originally agree to it.
27
Can a positive covenant pass in equity? Provide examples.
No, a positive covenant cannot pass in equity.
A positive covenant requires the covenantor to take specific actions, often involving expenditure, such as:
- A covenant to repair or maintain shared property (e.g., a shared driveway).
- A covenant to contribute financially to the upkeep of a property.
These covenants do not bind subsequent owners as they are seen as requiring personal action and do not "touch and concern" the land in the same way as a negative covenant.
28
What does it mean for a covenant to "touch and concern" the covenantee’s land?
A covenant "touches and concerns" the land if a breach of the covenant directly affects the use or enjoyment of the covenantee’s land.
For example, in Tulk v Moxhay (1848), a covenant not to build on a piece of land “touched and concerned” the land because it impacted the use and value of the covenantee’s land. The covenant must have a direct, practical effect on the land in question to be enforceable.
29
Why can the landlord pursue unpaid service charges from 2012, but not unpaid rent from the same year?
The landlord can pursue unpaid service charges from 2012 due to the 12-year limitation period applicable to debts under a lease executed by deed. However, the landlord cannot pursue unpaid rent from 2012 because the Limitation Act 1980 imposes a six-year limitation period for claims for arrears of rent, regardless of whether the lease is by deed or under hand.
29
What is the significance of notice in the passing of the burden of a covenant?
A subsequent purchaser of land must have notice of the covenant to be bound by it.
Equity operates on the conscience, meaning that a purchaser who is aware of a restrictive covenant when they buy the property will be bound by it. If the purchaser does not have notice of the covenant, they may not be bound by it, even if the covenant would otherwise pass in equity. Additionally, the principle of "clean hands" applies, meaning the person seeking to enforce the covenant must not be in breach of the covenant themselves.
29
What factors will the court consider when assessing the seriousness of an offence under the Sentencing Act 2020?
The court will consider (1) the offender's level of culpability and (2) the harm caused, intended to be caused, or that might foreseeably have been caused to other people, particularly the victim, as per Section 63 of the Sentencing Act 2020.
30
What are the legal principles regarding the construction, maintenance, and cost-bearing responsibilities of an easement when no covenant is included, according to Taylor v Whitehead (1781)?
The case of Taylor v Whitehead sets out the following key principles when an express easement is created but no covenant regarding maintenance or repair is included:
Construction of the Easement:
Neither the servient nor the dominant landowner is required to construct the way (e.g., a driveway).
The dominant landowner has the right to enter the servient land to construct the way when reasonably necessary, but there is no obligation to do so. Any construction must be done in a reasonable manner with ordinary skill and prudence.
Maintenance and Repair:
Neither party has an obligation to maintain or repair the way.
The servient landowner can choose to maintain or repair the way, but if they do so, they will bear the entire cost themselves.
The dominant landowner can also maintain or repair the way but will also bear the full cost.
Cost Bearing:
The dominant landowner must bear the costs of constructing, maintaining, or repairing the way.
Neither party can claim a contribution from the other for work carried out.
The fact that the driveway is necessary for the better enjoyment of the dominant land does not alter the principle that the dominant landowner bears the full costs.
In summary, if no covenant is included, the dominant landowner bears the costs of construction, maintenance, and repair, with no obligation for the servient landowner to contribute or maintain the way.
31
What happens when personal representatives (PRs) sell an asset after a person’s death?
The PRs are charged CGT on the gain made by selling the asset. The gain is calculated based on the difference between the sale price and the market value on the date of death.
31
What is the Capital Gains Tax (CGT) implication when a person dies?
There is no CGT at the time of death, as death is not considered a disposal of assets. However, the personal representatives (PRs) are deemed to have acquired the assets at the market value on the date of death.
When a person dies, the assets they owned are treated as if they were disposed of at their market value on the date of death. This means the PRs are deemed to acquire the assets at the market value at the time of death, not the original purchase price. The original purchase price is no longer relevant for CGT purposes because the transfer occurs at the date of death, and the market value becomes the new cost basis.
While the person has passed away, no CGT is triggered upon their death. The estate does not face CGT at this point. Instead, the PRs inherit the assets at their market value on the date of death. The sale of the asset by the PRs is treated as a separate transaction where they will be taxed based on the difference between the sale price and the market value at death.
31
What should a tenant do if they wish to remain in occupation without a new fixed-term tenancy?
The tenant should take no action and continue to occupy under the continuation tenancy provided by the LTA 1954.
32
What happens to a tenancy under the Landlord and Tenant Act 1954 (LTA 1954) after the contractual expiry date?
The tenancy continues indefinitely until terminated by either party in accordance with the LTA 1954.
32
How can a tenant or landlord end a tenancy under the LTA 1954?
A tenant can serve a s. 27 notice (to end without renewal) or a s. 26 request (to renew). A landlord can serve a s. 25 notice 6-12 months before the lease expires.
33
Can a positive covenant run with the land to bind subsequent owners?
No, a positive covenant does not run with the land and cannot be enforced by the original landowner against a new owner (Tulk v Moxhay).
34
What distinguishes a positive covenant from a negative covenant?
A positive covenant may require spending money to observe it (e.g., maintaining a shared driveway), while a negative covenant does not involve expenditure.
35
What does Section 5 of the Landlord and Tenant (Covenants) Act 1995 provide regarding the assignment of leased premises?
It provides that a tenant is automatically released from all covenants on the assignment of the whole of the leased premises (for leases signed after 1 January 1996).
36
When can a landlord require a tenant to sign an Authorised Guarantee Agreement (AGA)?
A landlord can require an AGA when there is either:
An absolute covenant against assignment, or
A qualified covenant against assignment with an express lease provision requiring an AGA as a condition for the landlord’s consent.
37
What is the purpose of an Authorised Guarantee Agreement (AGA)?
An AGA requires the outgoing tenant (assignor) to guarantee the performance of the assignee’s (new tenant’s) obligations under the lease.
38
Can a landlord require an AGA without an express provision in the lease?
Yes, if it is reasonable in the circumstances (International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986]).
38
When should you notify the SRA about inaccurate or misleading information?
You must notify the SRA if you become aware that any information provided to them is or may be false, misleading, incomplete, or inaccurate.
38
What must you notify the SRA about under Part 7.6 of the SRA Code of Conduct?
You must notify the SRA promptly if you are subject to any criminal charge, conviction, caution, relevant insolvency event, or material changes to information previously provided about you or your practice.
39
Voir Dire Procedure
A voir dire is a "trial within a trial" used to challenge the admissibility of evidence, particularly confessions. It occurs in the absence of the jury, with the judge deciding whether the evidence should be admitted based on legal arguments and evidence presented.
40
Admissibility of Confessions
A voir dire is held when a confession's admissibility is questioned due to potential oppression or unreliability. If a defendant denies making the confession or claims their signature was forged, the issue is factual and should be addressed by the jury.
41
What is the "probate value" of an estate for Inheritance Tax (IHT) purposes?
The probate value is the open market value of all the deceased’s assets immediately before death, minus any liabilities such as mortgages or unpaid bills.
41
How is the value of quoted stocks and shares determined for IHT purposes?
The value of quoted stocks is calculated by taking the lower of the two quoted prices and adding 1/4 of the difference between them. For example, if the quoted prices are £50-54, the value would be £51 per share.
41
How are shares in an unquoted company valued for IHT purposes?
Shares in an unquoted company are valued at their open market value
42
What is a "fully-secret trust" in the context of wills?
A fully-secret trust is created when a testator leaves property to a person in their will, with the understanding that the person will hold it on trust for another beneficiary. The fact of the trust or the beneficiary's identity is not disclosed in the will.
42
What are the key requirements for creating a fully-secret trust?
The key requirements are:
1. The testator's intention to establish a secret trust.
2. The intention was communicated to the trustee before the testator's death.
3. The trustee's acceptance of the obligation.
43
What happens if the trustee of a fully-secret trust refuses to pass the property to the secret beneficiary?
If the trustee does not fulfill the wishes of the testator, the trustee can be estopped from asserting title to the property, and the secret beneficiary will receive the property.
44
Why can't a minor act as an administrator of an estate, and who can be appointed instead?
A minor cannot act as an administrator. Under circumstances where a will or intestacy involves a minor beneficiary or a life interest arises, any grant of
administration must be made either to a trust corporation (with or without an individual) or to not less than two individuals, unless it appears to the court to be expedient in all the circumstances to appoint an individual as the sole
administrator (section 114 of the Senior Courts Act 1981).
45
When must the prosecutor serve initial details of the prosecution case according to the Criminal Procedure Rules?
The prosecutor must serve initial details of the prosecution case as soon as practicable and in any event no later than the beginning of the day of the first hearing (Criminal Procedure Rules, rule 8.2).
45
Is the test of recklessness subjective or objective?
subjective
45
When can trustees cease making payments for a beneficiary's maintenance or education under the Trustee Act 1925?
Trustees must cease making maintenance or education payments once a beneficiary reaches the age of 18, marries, or forms a civil partnership, unless the trust document specifies otherwise. However, if the beneficiary’s interest is contingent, trustees must pay the income generated from the trust property until the beneficiary’s interest becomes vested.
46
Can a trustee delegate asset management functions under the Trustee Act 2000, and what conditions must be met?
Yes, a trustee can delegate asset management functions under s. 11 of the Trustee Act 2000, provided the delegation is set out in writing. Section 15 requires that a written policy agreement be signed, outlining how asset management functions should be carried out in the trust's best interests. The fact that the beneficiaries are minors does not affect the ability to delegate.
47
What is required for a conviction of attempted murder?
For a conviction of attempted murder, the defendant must have intent to kill. There must be a conscious decision by the defendant to complete the actus reus (physical act) of the attempted offence. The mens rea for attempted murder is intention to kill, even if the mens rea for the substantive offence of murder is to cause death or grievous bodily harm (GBH).
47
Is oblique intention sufficient for attempted murder?
Yes, oblique intention can be sufficient for a conviction of attempted murder. Even though the defendant may not have specifically intended the result (e.g., death), they must have foreseen it as a virtually certain consequence of their actions and proceeded anyway. This was established in cases such as Pearman (1985) and Walker and Hayes (1990), where oblique intention was deemed sufficient for the mens rea of an attempt to be complete.
47
What is the legal estate and who holds it in a joint tenancy?
The legal estate is always held by co-owners as joint tenants in law. According to sections 1(6), 34(1), and 36(2) of the LPA 1925, the legal estate is held by a maximum of four joint tenants, with the first four persons named on the transfer deed holding the legal estate upon trust for themselves and others if more than four are named.
If more than four people are named on a transfer deed, the first four persons named will hold the legal estate, and the others will hold the legal estate on trust for themselves and the others. This is in accordance with section 34(2) LPA 1925.
47
How can a tenancy in common arise from a joint tenancy?
A tenancy in common can arise when the conveyance or transfer deed contains words of severance, such as "equally" or "in equal shares". These words indicate that the equitable title is held as a tenancy in common, even if the legal estate is held as a joint tenancy. This was demonstrated in Morley v Bird (1798).
48
How does survivorship affect a joint tenancy and a tenancy in common?
The doctrine of survivorship applies to a joint tenancy, meaning the share of a deceased joint tenant automatically passes to the surviving joint tenants. However, this doctrine does not apply to a tenancy in common, meaning each person’s share can be passed on according to their will. In this case, the first person’s daughter would inherit the first person’s share in the property as a tenant in common.
48
What are the three certainties required for a valid trust, as established in Knight v Knight (1840)?
The three certainties are:
Certainty of intention – The settlor must show clear intent to create a trust.
Certainty of subject matter – The trust property and beneficiaries' entitlements must be clearly identifiable.
Certainty of objects – The beneficiaries must be clearly identified.
49
What does "certainty of intention" mean in the context of a trust?
Certainty of intention requires the settlor to demonstrate clear intent to create a trust. Equity will not perfect an imperfect gift (Jones v Lock (1865)). For example, in the case of shares, the settlor must deposit an executed stock transfer form with the trustee to transfer the shares.
If there is no certainty of intention, the trust cannot be validly created. For example, failing to execute a necessary transfer form for shares demonstrates a lack of intention, leading to the trust's failure.
50
Can a testator direct a will to be signed via a video call?
No, the testator must be physically present for the signing of the will, even if another person is signing on their behalf. A video call does not satisfy the requirement of physical presence under s. 9 of the Wills Act 1837.
50
Can someone other than the testator sign a will?
Yes, under s. 9(b) of the Wills Act 1837, another person can sign the will on behalf of the testator in the testator's presence and by their direction. This person can be:
An attesting witness (Re Bailey (1838)),
The person who wrote the will (Re Elcock (1869)), or
The sole beneficiary (Barrett v Bem [2011]).
50
What are the main requirements for a valid will under s. 9 of the Wills Act 1837?
The will must:
Be made in writing.
Be signed by the testator or by another person in the testator's presence and direction.
Have the signature made or acknowledged in the presence of at least two witnesses present at the same time.
Be signed by the witnesses or acknowledged in the presence of the testator.
51
Can evidence of prior misconduct that did not result in charges or convictions be admissible as bad character evidence?
Yes, under s. 101 of the Criminal Justice Act 2003, evidence of prior misconduct, such as a caution for previous assaults, can be admissible as bad character evidence.
52
What discretion does a judge have to exclude bad character evidence?
A judge may exclude bad character evidence under s. 78 of the Police and Criminal Evidence Act (PACE) 1984 if its admission would have an adverse effect on the fairness of the proceedings.
53
Does the "interests of justice" test apply to the admission of bad character evidence?
No, the "interests of justice" test under s. 114(1)(d) of the Criminal Justice Act 2003 applies specifically to the admission of hearsay evidence, not bad character evidence.
53
What does s. 17 of the Landlord and Tenant (Covenants) Act 1995 require for pursuing a third party for fixed sums?
The landlord must serve notice on the third party within six months of the fixed sum (e.g., rent or service charge arrears) becoming due.
54
What must a notice under s. 17 include, and what happens if it is not served in time?
The notice must detail the debt and intention to pursue it; failure to serve within 6 months prevents the landlord from recovering the debt.
Rationale behind 6 month requirement: To protect third parties from unexpected liability for substantial arrears.
55
What happens if a solicitor gives an undertaking to redeem a charge but fails to do so?
The solicitor is personally liable to the recipient of the undertaking (e.g., the buyer) for the amount required to redeem the charge, even if insufficient funds are available from their client.
56
Are solicitor undertakings binding even if circumstances change?
Yes, undertakings remain binding regardless of changes in circumstances. Solicitors must notify the recipient of any changes immediately and remain liable unless personal liability was explicitly excluded.
56
What are the key principles regarding solicitor undertakings under the SRA Code of Conduct?
Solicitors must perform all undertakings within an agreed or reasonable timeframe. Failure to do so constitutes professional misconduct, potentially leading to SRA disciplinary action or court enforcement under s. 50 of the Solicitors Act 1974.
57
What information must trustees provide to beneficiaries regarding trust accounts?
Trustees must provide reasonable information about trust assets, investments, the beneficiary's entitlements, and certain trust documents, such as trust deeds, deeds of appointment, and trust accounts.
However, trustees are not obligated to disclose confidential information or details about how they manage the trust.
Beneficiaries have no proprietary right to trust documents or information but can request disclosure, which courts may grant at their discretion based on the circumstances.
58
What is required for the custody threshold test under s. 230 of the Sentencing Act 2020?
The offence or combination of offences must be so serious that neither a fine nor a community sentence can be justified.
59
Can a blind person witness a will?
No, because witnessing is inherently a visual act.
60
What are the basic requirements for witnesses to a will?
Witnesses must be:
Mentally and physically present when the testator signs the will.
Capable of seeing the testator sign (cannot be asleep, intoxicated, or of unsound mind).
60
What is the primary role of a witness when a will is signed?
To attest that the testator signed the will in their presence and that they were mentally and physically capable at the time.
61
Can a creditor or executor of the will act as a witness?
Yes, a creditor (or their spouse/civil partner) and an executor of the will are competent witnesses to the execution of the will.
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Can a minor witness a will?
Yes, provided the minor understands the significance of their role in the process.
However, best practice is to avoid using minors as witnesses
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what are the applicable charitable purposes to establish a charitable purpose trust?
Prevention or relief of poverty, advancement of education, advancement of religion
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How to establish a valid charitable trust?
A valid charitable trust must have charitable purpose + public benefit
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what is public interest (for the purposes of determining whether a charitable purpose trust is validly established)
- Trust to pay school fees for children of company’s employees – not for the public benefit, the children did not constitute an appropriate section of the public
- Gift for the benefit of nuns who did not leave their convent was deemed not to be in the public interest. Deceased’s religion promotes separation from the rest of humanity – no public interest
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what is gross negligence manslaughter?
Gross negligence manslaughter: the breach of an existing duty of care which is reasonably foreseeable and gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission.
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What are the key requirements for a document to be validly executed as a deed by a company?
A document is validly executed as a deed by a company if:
It is duly executed by the company.
It is delivered as a deed.
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Is it necessary to have two directors sign for a deed to be valid?
No, a deed can be validly executed by one director in the presence of a witness who attests the signature.
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How can a private limited company execute a deed under the Companies Act 2006?
A private limited company can execute a deed in the following ways:
By affixing the company seal.
By two authorised signatories (e.g., two directors).
By one director and a company secretary.
By a director signing in the presence of a witness who attests the signature.
By a person acting as the company’s attorney.
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Does a company’s seal need to be affixed for a deed to be valid?
No, a company seal is not required for a deed to be valid.
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What is the presumption about delivery of a deed under the Companies Act 2006?
A deed is presumed to be delivered upon its execution unless a contrary intention is proven (s. 46(2) Companies Act 2006).
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Is it necessary for a deed to be sent back to the solicitor for it to be valid?
No, a deed is valid even if it was not sent back to the solicitor, as long as it was duly executed and delivered
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What pre-completion searches are required when acting for an assignee of a registered lease but the freehold title is unregistered?
Land Charges Searches: To verify that no new interests have been created by the landlord that could affect the lease.
OS1 Priority Search: Conducted against the leasehold title to ensure no new interests have been registered since the official copies were provided and to secure priority for your application.
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What is an OS1 priority search?
An OS1 priority search is an official search with priority of:
The whole of a registered title, or
A pending first registration application.
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When are Land Charges Searches required?
Land Charges Searches are required when the title is unregistered, to check that no new interests have been created by the landlord which could affect the lease.
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Why is an OS1 priority search conducted for a leasehold title?
An OS1 priority search is conducted to:
Ensure that no interests have been registered against the leasehold title since the date of the official copies.
Obtain priority for your application.
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Does the client taking or not taking a mortgage affect the need for pre-completion searches?
No, pre-completion searches (Land Charges and OS1) are still necessary to ensure no adverse interests affect the title, regardless of whether the client is taking a mortgage.
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When should an either-way offence be tried summarily in a magistrates’ court?
An either-way offence should be tried summarily (in a magistrates' court) unless:
The magistrates’ sentencing powers are clearly inadequate.
The case has unusual legal, procedural, or factual complexities.
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Test for self defence
Df can rely on self defence if level of force used is considered to be reasonable. Test for self-defence – (1) did the Df honestly believe that the use of force was necessary and (2) was the force used reasonable in the circumstances. A mistaken belief as to the need to use force does not negate the defence
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What is the hearsay exception for admitting a written statement in court without the witness attending?
A written statement can be read in court as hearsay if:
The maker of the statement has signed it.
It includes a declaration of its truth.
It has been served on the opposing party.
The opposing party has not objected within 14 days of service.
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