FLK2 MCQs Flashcards
Trusts
Is a declaration of trust conclusive?
Yes, if there is an express declaration, the court does not need to look at conduct
Who is eligible to claim under the inheritance provision for family independence act 1975?
Spouse or civil partner
Children of the deceased
People treated as children of the family
People being maintained by the deceased
Cohabiting partner for the last two years
When can the court appoint or replace a trustee?
Whenever it is expedient to do so and it is found inexpedite difficult or impractical to do so without the courts assistance
The beneficiaries do not have to consent to the courts actions
The court have this power regardless of whether there is a person nominated in the trust instrument
The court can do this even if the trustee has not committed a breach of trust maybe use where they can’t agree
When will the court imply a constructive trust in respect to the family Home?
May establish a constructive trust in favour of the non-legal owner if they can establish that
- The parties had a common intention expressed or inferred that the non-legal law should have an equitable interest in the property and
- the non-legal owner relies on this to their detriment
The court May and furthest from things such as direct contribution to purchase price mortgage payments or substantial renovations to the property
If there is no agreement, then inferred common intention can be argued by financial contribution or renovations
When quantify the interest in the house, the court will take a holistic approach
When is a resulting trust implied in terms of the family Home?
Purchased money resulting trust implied where there is a financial contribution at the time of purchase
Is an illiterate person capable of acting as a witness to a will?
Yes, they are capable as acting as a witness providing the person as aware that the testator is signing a will
Will the court impose a trust where the property transferred was made as part of an illegal or fraudulent transaction?
Maybe the court must decide whether is in the public interest to allow a claim must taken into account or relevant factors including the underlying purpose of the law and the respective conduct of the parties
What is the rule of fortuitous vesting? Strong v Bird
If an intending donor dies before a transfer is made and the donor becomes the donees personal representative, the transfers complete in law and the gift is enforceable
Must have a continuous unbroken intention to give the gift between the donors initial intention to give and the donees appointment as personal representative
What is required for unlawful act manslaughter?
A act which constitutes a criminal offence
The act must be intention, unlawful, dangerous and the cause of death
Must be intentional, cannot be reckless
Act must be dangerous but does not need to carry a risk of death
What is indirect intent?
Defendant is held to intend a consequence (indirectly) when that consequence is a virtual certain consequence of his actions and he foresaw that it was a virtual certain consequence
both elements need to be present
What happens if a trust fails for lack of certainty of objects?
The trustees hold on resulting trust for the settlor or their estate
What test is used for certainty of objects in a discretionary trust?
The given postulant test that is can it be said with certainty whether any given individual is or is not a member of the class the word must be conceptionally certain and capable of objective definition
If not the trust will fail for lack of certainty of objects and the property is held on resulting trust for the settlor or their estate
When can a trustee advanced capital to a beneficiary?
Where the beneficiary has an interest in the capital of the trust the trustees have a discretionary power to advance capital for their advancement or benefit
No advancement can be made without the written consent of any beneficiaries with a prior interest who would be prejudiced by the advancement
When can the trustees use their power of maintenance?
Only when beneficiary has an interest in the trust income
What must the defendants mental state be for aggravated criminal damage?
The defendant must intend or is reckless as to the criminal damage and intend or be reckless as to the endangerment of life by the damage caused to the property
Forsee that lives could be endangered by the criminal damage and it was an unreasonable risk to take in the circumstances known to the defendant
Lives do not actually need to be endangered
