FLK2 Flashcards
What is Quick Succession Relief (QSR) and when does it apply?
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).
QSR cannot apply where spousal exemption applied
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.
What is the spousal exemption?
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.
How is the QSR tax credit calculated?
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%
Does QSR apply to the estate value or IHT due?
QSR applies to the IHT due, not the estate value.
Can QSR be applied retroactively to other estates?
No, unused QSR is lost and cannot be transferred or applied to other estates.
What is the purpose of Section 32 of the Trustee Act 1925?
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.
What is the trustees’ primary obligation when exercising the power of advancement?
Trustees must ensure the specific purpose of the advancement is followed and act with proper care (Re Becketts Settlement [1940] Ch 279).
What is the initial detention time limit under PACE 1984?
24 hours from the relevant time, after which the person must be charged or released (s. 41(1)).
When does the detention clock start for a person who was arrested after attending the station voluntarily?
The relevant time is the time of arrest (s. 41(2)(c)).
How can the detention time be extended beyond 24 hours?
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).
What is a prescriptive easement, and how is it acquired?
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.
What are other ways to acquire a legal easement besides prescription?
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.
Why was the homeowner in this case unable to acquire a prescriptive easement?
The neighbour’s permission for road usage meant the use was not as of right, which is essential for acquiring a prescriptive easement.
What is a licence, and how does it differ from an easement?
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.
What is the legal effect of permission granted by a neighbour to use land?
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.
Does mistaken belief in a right to use land affect the acquisition of a prescriptive easement?
No, a mistaken belief does not prevent the acquisition of a prescriptive easement. The key factor is whether the use was as of right.
How is the test for a lawful excuse defence applied?
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.
What is the lawful excuse defence under section 5(2)(b) of the Criminal Damage Act 1971 (CDA 1971)?
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.
Can a defendant claim a lawful excuse defence if their belief about the need for protection is incorrect or unjustified?
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.
How does the spousal/civil partner exemption affect inheritance tax?
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.
How is Inheritance Tax (IHT) calculated for an estate?
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.
How many participants are required in a standard identification parade under PACE?
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.
What is the requirement for the number of participants if there are two suspects of similar appearance?
If there are two suspects of similar appearance, at least 12 images should be shown to the witness.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
