Paper 2 - Key Principles Flashcards
What does a certificate of lawfulness do?
Deals with any doubt that work falls within the GPDO
What is the level of damages that can be awarded for breach of a repair covenant subject to?
A statutory cap - damages can’t exceed the amount by which the value of the reversion has been diminished by the breach
Whatever drop in value of the freehold interest due to breach, is maximum level of damages that can be awarded (even if cost of remedying it is higher)
If someone accidentally destroys original will but there is a copy, what should be done?
The copy can be submitted to probate as evidence of the original will
Can a witness to a will act as an executor?
Yes!
Is a remainder interest in a life interest trust included in a taxable estate? Are life insurance proceeds?
No
Yes, if payable directly to estate
Is a pension lump sum payable to others i.e. not the deceased, included in the taxable estate?
No
Where a bill was issued plus VAT, and there was an abatement, what are the accounting entries to show this abatement? What are the entries for the VAT being reduced?
Debit profit costs (amount); Credit client ledger business account (amount)
Debit VAT account (amount); Credit client ledger business account (amount)
When is RNRB relevant?
Only for calculating IHT on death estate! Never for lifetime transfers
What are the requirements for RNRB?
a) estate doesn’t exceed £2.35m
b) deceased died on/after April 2017
c) house they occupied as their residence (including houses they intended to occupy as residence)
d) closely inherited (will, intestacy or survivorship) by a direct descendant
What is a ‘direct descendant’ for RNRB purposes?
Children, grandchildren etc
Spouses or widows/widowers of any of those lineal descendants
If don’t qualify for RNRB, can you transfer to spouse?
Yes
For a trust of land, if there is no signed, written evidence of the declaration, but a declaration has been made e.g. orally, what is the status of the trust?
Valid but not enforceable until formalities carried out (and if necessary, legal title has been transferred to trustees)
When can liability of trustees be excluded or limited by an exemption clause?
As long as they are not fraudulent! So negligence and innocent breaches can be excluded/limited
Where property is transferred to a trustee but the trust fails, what is the legal and beneficial ownership of the trust property?
Trustees hold legal title on automatic resulting trust for settlor
What effect does self-dealing have on a transaction?
Transaction is voidable and can be set aside at request of beneficiaries
What is the mens rea for ABH?
Mens rea for either assault or battery
What minimum rank of officer is allowed to delay the right to inform someone of your arrest?
Inspector
If the suspect is known to the witness, is it necessary to carry out an identification procedure?
No
Where the MC has withheld bail, what should the defence do to appeal to the Crown Court?
Send a copy of completed form to Crown Court, MC and the prosecutor as soon as practicable after the decision to remand
What type of offence is robbery?
Either way
If the MC determines the D’s case is not suitable for summary trial, what must it do?
Has no choice but to have trial in Crown Court
- Before they make their decision, the both defence and prosecution can make representations on which court is suitable but if they don’t accept jurisdiction, have to go with court’s choice
What factors will the magistrates consider when deciding on allocation?
Prosecution raises any previous convictions
Both P and D can make representations
When is case management conducted?
When a not guilty plea has been entered in order to progress the case efficiently to trial
What impact may procedural failures as conducting an interview have on a confession made in that interview?
May mean the inclusion of such confession would have such an adverse effect on the fairness of proceedings that the court should exclude it
Could rely on S78 to exclude
What impact can a significant passage of time between previous and current convictions have on its admissibility?
Can make it be unjust for the court to admit the previous convictions
What is the operation period for a suspended sentence?
Must be not less than 6 months and not more than 2 years
What is a newton hearing?
Where a D pleads guilty on a basis that will make a material difference to sentence, the court must hold this to decide the factual basis upon which it should pass sentence
Not a trial!
When is a collateral advantage (solus tie) sometimes struck out?
As lender is getting additional avantages from the borrower
In commercial transactions, it’s permissible as long as it ends within the mortgage term
If it goes beyond the mortgage term, only upheld if truly independent of mortgage term
What information for a criminal investigation must be retained?
Anything that may be relevant
How long does the duty to retain material last?
Depends on at what stage proceedings finish
If D is convicted, must be retained at least until D is released from custody or until 6 months from date of conviction
Where an appeal is in progress, must be retained until appeal is concluded
