revision Flashcards
1
Q
What are the three certainties required for a valid express private trust?
A
Certainty of:
- Intention to create a trust
- Subject matter i.e. property
- Objects i.e. beneficiaries
2
Q
What factor determines whether a fractional share of property is valid?
A
Whether it is tangible or intangible.
Intangible, e.g. shares: Fractions, e.g. 50% or half are valid
Tangible: Not valid unless the fraction has been segregated for the trust, even if the property is identical, e.g. wine of the same type and vintage
3
Q
What happens when a trust fails for uncertainty of subject matter?
A
Property reverts to settlor
4
Q
Where a collective term is used for a class of beneficiaries, what are the two types of test used and what determines which one is used?
A
- Complete List Test - used for fixed trusts
- Given Postulant Test - used for discretionary trusts
5
Q
What is required under the given postulant test for a discretionary trust?
A
Definition of class must be sufficiently clear to enable to the trustees to assess the potential range of beneficiaries and determine whether any given postulant (person) falls within the class
It is not necessary for the whole range of potential beneficiaries to be ascertainable.
6
Q
Regarding objects, what will cause a discretionary trust to fail?
A
Where there are so many beneficiaries that the trust is administratively unworkable
7
Q
What happens when a trust fails for uncertainty of objects?
A
A resulting trust in favour of the settlor or the settlor’s successors is presumed
8
Q
Therefore to summarise, what happens to property in the case of failure of a trust for uncertainty of:
- Intention
- Subject matter
- Objects
A
- Intention: Property passes to person who would have been trustee
- Subject matter: Property reverts to settlor
- Objects: Resulting trust is presumed in favour of settlor or their successor’s
9
Q
Who may be a trustee?
A
Anyone with capacity to acquire and hold property for their own benefit, e.g. a private individual, a professional person, or a trust company, but not a minor
10
Q
What is the minimum and maximum number of trustees allowed?
A
Minimum of one. No limit on the maximum.
Differs from executors/administrators, for which there is no limit
A trust of land must have at least two and no more than four trustees.
11
Q
What does the inalienability rule provide?
A
In the exceptional case where a non-charitable purpose trust is valid, it is valid for either:
- 21 years or
- The rest of a living person’s life plus 21 years
12
Q
What does the remoteness of vesting rule provide?
A
An interest under a trust is void if it does not or will not vest within 125 years
13
Q
Intervivos Trusts
What is a declaration of trust?
A
Settlor’s demonstration by words or conduct that they intend the trustee (or themselves as trustee if it is transfer to self) to be legally bound, satisfying three certainties and perpetuity
14
Q
In addition to a declaration of trust, what is required for an inter vivos trust where a third party is acting as trustee?
A
The settlor must transfer the trust property in the appropriate legal fashion
15
Q
What is required for a declaration trust of land?
A
It must be evidenced in writing and signed by settlor
16
Q
On the exam where a settlor is setting up a trust of land with a third party as trustee, what should be distinguished?
A
The requirement for a signed writing to evidence the declaration of trust should be distinguished from the requirement for a deed registered at HMLR to make the transfer
17
Q
What are the three requirements for a donatia mortis causa, i.e. gift by reason of death?
A
- Donor delivers property to donee while in objective contemplation of imminent or impending death
- Donor intends that the property be given to donee if donor dies, or returned if donor survives, and
- Donor does indeed die
18
Q
Testamentary trusts
What are the requirements for a testamentary trust, and why is there not a requirement to transfer the property?
When does the trust take effect?
A
It must remain revocable until death, and must be contained in a will duly executed under the Wills Act
The trust takes effect upon death
19
Q
Within what time limit of breach must a planning enforcement notice be served where it is regarding (1) unauthorised building works and (2) all other breaches, e.g. breach of conditions of planning?
A
- Unauthorised building works: Four years
- Other breaches: Ten years
20
Q
What are the spouse’s three entitlements where there are issue?
A
- Personal chattels
- £322,000
- Half the residue absolutely
21
Q
For a spouse to receive their beneficial entitlement, for how long must they survive the deceased?
A
28 days
22
Q
What is the list of eight beneficiaries who will take intestate property if there is no spouse, and how is this dealt with?
A
As soon as a beneficiary falling a category in the below list is identified, subsequent beneficiaries are ignored:
- Issue of the intestate on statutory trusts
- Parents (equally if both alive)
- Full brothers or sisters on statutory trusts
- Half brothers and sisters on statutory trusts
- Grandparents (equally if both alive)
- Full uncles and aunts on statutory trusts
- Half uncles and aunts on statutory trusts
- The Crown as bona vacantia
23
Q
How will members of a class of beneficiaries take their share, and what are the two conditions, one of which is required?
A
They will take their shares equally, as long as they:
- Reach 18, or
- Marry before 18
24
Q
Who has the burden of proving a testator did not have mental capacity, and what is the statutory test for this?
A
The person alleging the testator lacked capacity must show at the material time, the person is unable to make a decision for themselves because of an impairment or disturbance in functioning of the mind
25
What is the statutory test a reiteration of and what three things did this require the testator to understand at the time of execution?
The common law test, which required the testator to understand:
1. The nature of the act of making a will
2. The extent of their property, and
3. The claims which they **ought** to give effect to *even if they subsequently do not*
26
What are the three formalities for a valid will?
1. In writing
2. Signed by the testator *(or some person in T's presence and at T's direction such that it is clear T intended to give effect to the will)*
3. Signed by **two** witnesses ***each*** in the presence of the testator, but not necessarily in each other's presence *(or their previous signature is acknowledged in T's presence)*
27
In a situation where someone signs the will on the testator's behalf, is the will invalid if this person is also a witness?
No
28
What are the two requirements where someone signs the will on the testator's behalf?
1. Testator must be present when signature is made
2. Testator must indicate to the witness that the signature has been put there at his request
29
What is the situation if only part of a will is destroyed?
Whether or not the will is fully revoked, or only revoked to the extent of the part that was destroyed will depend on the importance of the part which was destroyed, e.g. the signature page being destroyed will revoke the entire will if intent to revoke is evident
30
What is the other situation where a will is rebuttably presumed to have been revoked?
Where a will was last known to be in the testator's possession, but cannot be found at the date of death
31
How does the court-applied doctrine of **dependent relative revocation** save a will?
If the testator's intention to revoke the will was conditional on a future event, and the event did not take place, the original will*, even if destroyed,* may be valid if it can be reconstructed
32
What are mutual wills?
Where two or more people make wills with the same clauses conferring reciprocal benefits, *further to an agreement* between them to make such wills and **not revoke them without the consent of the other**
33
What is the effect of a mutual will conferring a constructive trust in favour of the other party?
If one testator dies, and the other changes their will, a beneficiary harmed by this can apply to court for an order that the recipient of the changed gift transfers it to the original beneficiary
34
What is a legacy and what is a devise?
A legacy is a gift of personal property.
A devise is a gift of real property.
35
What is a demonstrative legacy?
A general or pecuniary legacy which identifies the **source** from which the gift is to be made
36
Under the doctrine of ademption, in what three situations will a *specific* gift **adeem**?
1. No longer part of the testator's estate
2. Subject to a binding contract for sale
3. No longer meets the description in the will
**Does not apply to general legacies**
37
Whilst a change in the substance of the subject matter will cause a gift to adeem, what will not?
A mere change in name or form
Example:
- Shares in ABC plc which change in form due to a corporate restructuring but the shares are still in ABC plc: **gift does not adeem**
- Shares in ABC plc which goes into liquidation and is taken over by XYZ plc, and shareholders receive new shares in XYZ plc: **gift adeems** as the substance is different
38
In what situation would the law of commorientes be applied, and what does it provide?
In a situation where parties die at the same time and it is impossible to determine who died first, e.g. car crash, the law of commorientes provides that, for succession purposes, the younger person survives the elder
39
What is the special rule where a gift is made to a testator's **child** or other **lineal** descendant, e.g. grandchild, and the beneficiary child or descendant predeceases the testator?
The gift will pass to the issue of the beneficiary if they are living, and unless a contrary intention is shown, it will occur *per stirpes*.
Note this **only** applies where a testator gives a gift to their **issue or lineal descendant** who:
(1) Predeceases the testator and
(2) Leaves living issue of their own.
It does not apply to gifts to parties who aren't issue or lineal descendants.
40
A gift to a beneficiary will fail if the beneficiary or their spouse/civil partner witness the will. Does this invalidate the entire will?
No, just the gift to the beneficiary witness fails
41
Whilst they can be named an executor, what two groups will not be granted probate?
1. Minors
2. Mental incapacity
42
What are the four requirements to renounce?
1. In writing
2. Signed by executor
3. Contain statement they have not intermeddled
4. Signed by a *disinterested* witness
43
Once renounced, what cannot be reclaimed without court permission?
The right to probate, i.e. can't restart the appointment of executor
44
*On to Grants of representation:*
What is a grant of representation?
A conclusive court document, authorising the deceased's personal representatives to deal with the estate and transfer assets to the beneficiaries
45
Where the matter is (1) non-contentious and (2) contentious, what courts will typically have jurisdiction to grant probate?
Non-contentious: **Family Division** of the High Court
Contentious: **Chancery Division** of High Court, or County Court if below £350k
46
In a non-contentious case, what is the monetary threshold which must not be exceeded for property in a savings scheme to be capable of being obtained **(at the institution's discretion)** with just a death certificate, i.e. grant of administration not needed?
£5,000.
*Note this is the same amount from the same source that will pass via intestacy to a chosen beneficiary in an intestate situation.*
47
What else can be sold with just the production of a death certificate, without requiring a grant of administration or providing the right to sell?
Chattels
48
If the personal representatives of an estate hires a solicitor, are the PRs the client or is the estate the client?
The PRs are the client
49
What are the four types of grant?
1. Probate
2. Letters of administration *with will annexed*
3. Letters of administration
4. Grant *de bonis non*
50
What is the order of entitlement to a grant of letters of administration with the will annexed?
1. Trustee of residuary estate, if any
2. Other residuary beneficiary or their PRs, with vested having priority over contingent
3. Any other beneficiary or creditor, or their PRs
51
In what situation will a beneficiary not be entitled to apply for a grant of letters of administration with the will annexed?
If the gift fails due to the beneficiary or their spouse witnessing the will.
*However, they can still apply in a different capacity, e.g. as a person entitled on partial intestacy.*
52
What is the minimum number of administrators required where there is a minor beneficiary, or life interest under the will?
Two
53
When is an application for just **letters of administration** made?
If the deceased dies intestate or leaves a will but **all the gifts** have failed
54
What is the order of entitlement for letters of administration?
Broadly the same as for intestacy*, but also including issue of parties if party has predeceased*:
1. Surviving spouse
2. Deceased's issue*, and their issue if predeceased
3. Parents
4. Full siblings*, and their issue if predeceased
5. Half siblings*, and their issue if predeceased
6. Grandparents
7. Full uncles/aunts*, and their issue if predeceased
8. Half uncles/aunts*, and their issue if predeceased
9. The Crown
10. Creditor of the deceased
55
What is the minimum number of administrators required (1) generally, and (2) where there is a minor beneficiary or life interest under the will, and what is the maximum number of administrators?
1. One
2. Two
3. Four
56
What is a grant *de bonis non* and to whom is it granted?
A second grant made to allow the completion of the administration of the deceased's estate following the death of the sole or last surviving PR, and is granted to the **person who would have been entitled had the original PR never taken the grant**
57
What is the exception to this where a grant de bonis non will not be required, and logically when does this **not** apply, and why?
In a chain of representation situation, where the sole or last surviving executor dies and that executor's executor takes a grant of probate, the executor of estate B will automatically take over the execution of estate A. They are **not able to refuse this** so any answer choice suggesting renunciation in a chain of representation situation is **wrong**.
Logically this cannot apply where the deceased in estate A dies intestate, because there is no executor in this situation. There is an administrator and this exception will not apply, so a grant de bonis non will be needed.
58
*On to pre-grant procedure:*
What must be paid by the PRs before a grant can be obtained?
Inheritance tax due on the estate
59
What is the **voluntary** scheme banks and institutions can agree to concerning release of estate funds?
In their discretion, the deceased's bank can release the money owed to HMRC to satisfy the inheritance tax before a grant
60
Within how long after the end of the month of the deceased's death must PRs deliver an account to HMRC?
12 months
61
However, from when does interest on inheritance tax due begin to run?
Six months from the end of the month of the deceased's death
62
What is the discount in the market value for tax purposes offered by HMRC in the case of **co-owned** (1) residential property and (2) investment property, in recognition of the difficulty in selling a part interest in land?
1. 15% for residential
2. 10% for investment
63
In what situation is the co-owned property discount from HMRC not available?
Where the property is co-owned by a spouse or civil partner
64
What are the two general exemptions from inheritance tax for estates of UK domiciliaries, such that an account need not be made?
Estates which do not exceed:
1. Nil rate band of £325k, or
2. £3 million, and the **net chargeable estate** does not exceed the NRB *(does not apply if over £100k in foreign assets)*
65
What two conditions must be met for an estate that uses the transferrable nil rate band (i.e. takes part of all of a predeceased's spouses NRB), to qualify as an excepted estate?
1. Estate value is less than twice the NRB, and
2. Unused NRB from a predeceased spouse can be transferred to the deceased
66
To what extent only is the UK estate of a non-UK domiciliary excepted?
If their UK estate consists solely of cash or quoted shares not exceeding **£150k**
67
How much must the deceased have given away in the last 7 years before they died for their estate to not be excepted, where it otherwise would be?
Over £250k
68
What is the duty of care under the Trustee Act 2000 which applies to PRs in addition to trustees, and what is this in addition to?
PRs must act with **reasonable care and skill** taking into account any **specialist knowledge**, in addition to the fundamental duties to act in the best interest of beneficiaries
69
Is a PR liable for loss from a fellow PR's breach of duty?
Not unless negligence is an issue, i.e. PR was negligent in allowing the breaching PR to engage in the conduct which led to the breach
70
What must the court be satisfied of before it can, at its discretion, relieve a PR from liability for breach of *any* duty?
That the PR acted **honestly and reasonably** and **ought fairly to be excused**
*Same as with trustees*
71
In what circumstance only is a PR liable for the act or omission of an agent to whom they have delegated?
Only if they failed to adhere with their statutory duty of care in appointing or reviewing the agent
72
What are the two exceptions to the general rule that a PR, like a trustee, is free to make any kind of investment they would be able to make if they were acting on their own account?
Cannot purchase:
1. Land abroad, or
2. An interest in any land with someone else, e.g. a beneficiary
73
Whilst a sole PR has the same powers as two or more and thus can give valid receipt for the proceeds of sale of land, what is required for the actual transfer of land *(and shares)*?
All PRs must join together
74
What are the PRs' four options when a **known** beneficiary or creditor cannot be found?
1. Pay their entitlement into court and distribute the rest
2. Distribute everything with an indemnity from the beneficiaries *(risky because indemnity is worthless if beneficiary has no funds)*
3. Seek a Benjamin order
4. Purchase insurance against the risk
75
What are the steps that must be taken under section 27 of the Trustee Act for a PR to protect themselves from liability in the case of an unpaid beneficiary or creditor?
Place adverts in the London Gazette, a paper local to the trust or relevant property, and any other appropriate publication, and request any interested person contact the PRs' solicitor.
PRs must give at least **two months**.
76
What is a Benjamin order, and what is the extent of the protection it affords to PRs?
A court order which gives the PRs permission to distribute the estate based on an assumption set out in the order, e.g. that the missing beneficiary is presumed dead. This gives full protection to the PRs.
77
*On to Collecting and realising assets:*
What is a **solvent** estate?
Where there are enough funds to pay reasonable funeral, testamentary, and administrative expenses, as well as debts and other liabilities **only**, irrespective of whether there is enough funds to satisfy legacies.
*(Beware of wrong answer choice suggesting an estate is insolvent because it cannot pay legacies. It is not.)*
78
If the will provides they should not be paid from the residue, what are the three sources that debts owed to unsecured creditors are paid from?
1. Property specifically charged with the payment of debts
2. Pecuniary legacy funds
3. Property specifically devised or bequeathed
79
What is the doctrine of marshalling, and who can it be invoked by?
Doctrine of marshalling is invoked by a disappointed beneficiary *(one whose legacy has been used to satisfy a debt even though the legacy was not within a category to be used to pay the debt)*, and it allows them to be compensated for the loss.
80
Where an estate is insolvent, what is the prescribed order that creditors should be paid, and if followed, protects the PRs from liability?
1. Funeral and administration expenses
2. Preferred debts*, i.e. wages, salary, and holiday pay of deceased’s employees for prior **four** months, to a maximum of **£800** each*
3. Ordinary debts*, i.e. money owed to HMRC, and balance of preferred debts*
4. Interest on 2 and 3
5. Deferred debts*, i.e. loans from deceased's spouse*
81
What implied warranty do the PRs give when the pay a category of debt **knowing** that there are higher ranking debts?
They give an implied warranty that there are **sufficient assets** to meet all higher level debts
82
When will a PR **not** be liable for paying off an inferior debt when there are superior debts?
When they did not know, i.e. had no notice of the superior debts
83
Although PRs must not prefer one creditor over another in an insolvency situation, when will a PR not be liable?
If they pay a creditor in one class in full, before the payment of others, and they later discover the estate to be insolvent, as long as PRs acted in good faith and had no reason to believe the estate was insolvent
84
What are the two groups who make up the category of “personal representative”?
1. Executors (probate)
2. Administrators (administration)
85
Does disclaiming a gift prevent the same person from receiving property under intestacy rules?
No, and for confusion on the exam it could potentially be the exact same property.
*Therefore consider disclaimer to be rejecting the **status as beneficiary** under a will, not rejecting the property.*
86
What is the main disadvantage of a disclaimer, and what is a way to overcome this?
The disclaiming beneficiary has no control over the ultimate destination of the gift.
This can be overcome by use of a **variation** *(allows B to change who receives the gift)* instead of a disclaimer.
87
What does it mean for a variation to be **effective** for tax purposes, and what are the three conditions for this?
It means that the variation is read back to the date of death as if the new beneficiary was the original beneficiary
Variation must be:
1. In writing
2. Made within **two years** of death
3. **Not** made for monetary consideration
88
Unlike disclaimer, in what situation can a variation still be made?
When the original beneficiary has accepted a benefit
89
*On to Payment of Legacies:*
What are the methods with increasing levels of formality which PRs must use to vest gifts in beneficiaries when the gift is of:
1. Chattels
2. Company shares
3. Land
1. Chattels: Items can be delivered, in exchange for receipt, and insurance then cancelled
2. Company shares: Stock transfer form
3. Land: **Assent** in writing, and insurance then cancelled *(B needs to register their interest with HMLR)*
90
When does the doctrine of abatement arise, and what does it provide?
When assets of a deceased person are not sufficient to fully satisfy all creditors, their debts **abate** i.e. are reduced, proportionally, and the creditor has no choice but to accept this lower value
91
*On to Ascertaining the residue:*
What is the tax presumption given to specific gifts of (1) UK property and (2) non-UK property?
Specific gifts of UK property are deemed free of tax, unless the will states otherwise.
The opposite presumption applies to non-UK property.
92
For what type of estate is a Certificate of Discharge *(document from HMRC confirming liabilities are discharged)* not required?
An excepted estate
93
How long after a grant of representation regarding an excepted estate is there an automatic discharge?
35 days
94
What are the four ways a PR can be authorised to receive remuneration for their services, in exception to the general rule that they are not entitled to do so?
1. A legacy given to an executor
2. Express clause in the will *(usually for professional PRs)*
3. Beneficiaries *(of the source of funds used to pay the PR)* consent
4. Court permission
95
*On to Estate accounts:*
What are the three accounts which generally make up the **estate accounts**?
1. Income account
2. Capital account
3. Distribution account
96
Where does ***income*** that relates to the period **before death** but is received **after death** go?
Capital account
97
At this stage, how are the PRs discharged from liability?
1. PRs endorse the accounts and send to the residuary beneficiaries
2. Residuary Bs endorse the accounts
3. Residuary Bs formally discharge PRs with agreement to indemnify them against all claims and demands *(again, can be worthless if Bs have no money)*
98
What are the PRs' two options if a residuary beneficiary refuses to endorse the accounts?
1. Ask court to approve the accounts
2. Pay the objecting beneficiary's share into court
99
*On to Assents:*
What is an **assent** and what are the three requirements for one?
Document which vests legal title in a beneficiary.
1. In writing
2. Signed by the PRs
3. Expressly name the person in whose favour it is given
100
In what situation is an assent still required, despite examiner's attempts to trick, and why?
Even when the PR is the beneficiary, because the capacity in which they are holding the asset is changing from PR *of the estate* to beneficiary *in their own capacity*
101
Is an assent required when a PR is to continue to hold property in a different capacity, e.g. as trustee under a trust arising out of the will or intestacy, and why?
Yes, because again, the **capacity** in which they are holding the asset is changing from PR *of the estate* to trustee *of the trust*
102
Whilst in the case of unregistered land, the PRs must ensure the land is subject to first registration, what are the PRs two options in the case of **registered** land?
1. Apply to be registered as the owner in place of the deceased, producing the grant when doing so, **or**
2. Transfer the property by assent to a beneficiary who will then apply to be the registered owner, submitting a certified copy of the grant when doing do
103
When buying land from a PR, what should a purchaser insist on which will protect the purchaser unless they have notice to the contrary?
A statement in the conveyance that no previous assent has been made
104
What is tracing, and in what two situations is the right to it lost?
The right of the beneficiaries to trace and recover property from the estate from PRs or subsequent purchasers.
The right to trace is lost if the purchaser is a bona fide purchaser for value without notice, or it would otherwise be inequitable to allow tracing.
105
Within what time of what event must an application under the 1975 Act be made?
Within six months of the grant of representation to the PRs*, or later with court permission*
106
What are the five categories of people who will qualify to make a claim under the 1975 Act?
1. Surviving spouse or civil partner *at the date of death*
2. Former spouse or civil partner *who has not remarried*
3. Child of the deceased or person treated as a child of the family
4. Person who was being maintained
5. Person living with deceased as partner for entire two-year period before death
107
For a person who was being maintained to be able to make a claim, how much of a contribution must the deceased have been making?
A **substantial contribution** towards the **reasonable needs** of the claimant
108
In their discretion, in what circumstance can the court apply the **spouse** standard to former spouses?
If the death occurs within 12 months of the divorce decree and no final order has yet been made in the divorce proceedings
109
In the event of a successful application under the 1975 Act, what are the court's four options under their wide discretion?
1. Transfer property
2. Payment of a lump sum
3. Payment of income
4. Settlement of property on trust
110
From this search, what is the priority period in the unregistered system in which to complete?
15 days
111
What occurs if there is an error in the official search certificate and what remedy is available?
Buyer is still bound by what should have been on the report, even if unaware of it, however they can claim an indemnity from HMLR
112
In the registered system, in the period between completion and registration, only what type of interest does the buyer have, why, and what must be done to protect this interest?
Only an **equitable interest**, because legal title in the registered system passes upon registration. The equitable title must be registered as a **notice** on the charges register of the property
113
What are the two purposes of the official search carried out after exchange in the registered system?
1. Discover any new entries, e.g. new mortgages, requiring address before competition
2. Start the 30 day priority period to complete **and** register
114
Regarding buyer's funding of the property, whilst a solicitor cannot offer a financial opinion on the mortgage offer, what can they do?
Explain the general terms, e.g. length, interest rate, conditions, but not whether it is a good product or not
115
What are the two functions achieved by the buyer's solicitor submitting a clear **Certificate of Title** to the lender?
1. Confirms to lender that title is good and marketable
2. Requests a release of the mortgage funds
116
What two steps does the process of **perfecting** the mortgage involve, and who does it?
Buyer's solicitor will:
1. Apply to register the title to the property after completion
2. Ensure the lender's legal charge is registered as a first legal charge on the Charges Register
117
What should we look for on the exam which might not appear to trigger a registration requirement for unregistered property but actually does, and why?
A client mortgaging property they already own which has not previously been subject to a mortgage, because a first legal mortgage is a trigger for registration
118
Regarding registered land, what search begins the priority period to complete registration free from intervening interests, and how long does this period last?
The OS1 or OS2 search will give a **30 day** priority period
119
Where there is a registration requirement which is triggered by mortgage completion concerning unregistered land, within what period must the buyer's solicitor register the mortgage?
Two months
120
If the buyer is a company, within what period must the mortgage be registered at Companies House?
21 days
121
Define simple assault and what is the AR and MR?
Any act which intentionally/recklessly causes another person to apprehend immediate and unlawful personal force
AR: causing the apprehension of immediate unlawful personal force
MR: intend or was reckless as to causing the apprehension of immediate unlawful personal force
122
Define physical assault/battery and what is the AR and MR?
The infliction of force
AR: infliction of personal force
MR: intend/was reckless as to inflicting unlawful personal force
123
Define s 18 OAPA and its AR and MR
Wounding/causing GBH with intent (to resist/prevent arrest)
AR = wound/cause GBH
MR = intention to cause GBH (plus an intent to resist/prevent arrest)
124
Define s 20 OAPA and its AR and MR
Malicious wounding/inflicting GBH
AR = wound/cause GBH
MR = intend/reckless as to causing ABH
125
Define s 47 OAPA and its AR and MR
Assault occasioning ABH
AR = an assault, which occasions/causes ABH
MR = intend/reckless as to causing simple/physical assault
126
Define actual bodily harm
Hurt or injury calculated to interfere with the health/comfort of the victim
A scratch or bruise would suffice
127
Define a wound
Breaking of both layers of the skin
Bruising is insufficient
128
Define grievious bodily harm
'Really serious harm'
Eg: fractured skull, several internal injuries, broken limbs, serious psychiatric harm, transmitting HIV
129
What is the AR, MR and causation requirements for murder?
AR = causing death of another human being
MR = either (a) an intention to kill; or (b) an intention to cause GBH
Causation:
- Factual: but for; acceleration of death must be significant/more than negligible
- Legal: D's act need not be the sole cause, but their act/omission must have contributed significantly to that result
130
What is required for the partial defence of loss of control to reduce the offence from murder to voluntary manslaughter?
1. D's acts/omissions resulted from D's loss of self-control
2. Loss of self-control had a qualifying trigger (fear and/or anger)
3. A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same/similar way to D
Burden of proof is on the prosecution to disprove the defence beyond all reasonable doubt
131
What is the AR and MR of unlawful act manslaughter?
AR:
1. Do an unlawful act
2. Which is dangerous
3. Which causes the vicitim's death
MR: intend/recklessness as to inflicting unlawful personal force
132
What is the AR and MR for gross negligence manslaughter?
AR:
1. D owes a duty of care to V
2. D breaches this duty
3. The breach carries the risk of death
4. Breach causes V's death
5. Breach amounts to gross negligence
MR: no MR is required
133
What is the AR of theft?
1. Appropriation = assuming the rights of the owner
- Can apply if owner has consented to D appropriating property
- Appropriation cannot be repeated
2. Of property = money and all other property, real or personal
- Does not include:
a) Land
b) Wild plants/flowers unless picking for reward/sale
c) Wild animals unless tamed/kept in captivity or carcass is being reduced into possession
d) Confidential information (the medium which it is on (eg: USB, paper) can be stolen)
e) Electricity - separate offence of abstraction of electricity
3. Belonging to another
- Can steal your own property
- Ownership of cash passes when it is handed over unless D is under a clear obligation to deal with it in a particular way
134
What is the MR of theft?
1. Dishonest appropriation
a) What was D's genuine and honest belief/knowledge as to the facts (subjective)
b) Would ordinary and decent people objectively consider D's behaviour dishonest, taking into account the facts that D honestly believed/knew them to be
Exceptions:
1. D had the legal right to deprive owner of property
2. Owner would have consented had they known the circumstances
3. D had honest belief that owner could not be found by taking reasonable steps
2. An intention to permanently deprive
- Drawing on another's bank account shows ITPD
- Taking cash shows ITPD even if D planned to return the money
- Borrowing could amount to ITPD if on returning the property all the goodness/virtue/practical value has gone
135
What is the AR and MR of robbery?
AR:
1. AR of theft (appropriation of property belonging to another)
2. Using force/seeking to put anyone in fear of immediate force
3. At the time of/immediately before theft
MR:
1. MR of theft (dishonest appropriation with an intention to permanently deprive)
2. Intention/recklessness regarding use of force
- Same as MR for physical assault/battery
3. In order to steal
- Force must have been intended in order to steal/to make an escape, otherwise it is a separate offence
136
What is the AR and MR of s 9(1)(a) burglary?
AR:
1. Entering
- If an instrument was used, must be used with an intention to steal/commit GBH/criminal damage, not just to make an entry
2. Building/part of a building
3. As a trespasser
- Entering without consent/permission of the owner (if D is asked to leave, cannot be a trespasser by taking only available route out)
MR:
1. Knowledge/reckless as to being a trespasser
- Determined at time of entry
2. Intending to commit either:
a) Theft
- Can be conditional (seeing if there is anything worth stealing)
b) GBH
c) Criminal damage - can be committed in any part of the building
For theft/GBH, must intend to commit these offences in (part of) building they are entering into
137
What is the AR and MR of s 9(1)(b) burglary?
AR:
1. Having entered
2. Building/part of building
3. As a trespasser
4. Commits AR of either:
a) (Attempted) theft
b) (Attempted) GBH
- Attempted = an act more than merely preparatory to causing really serious harm
MR:
1. Knowledge/recklessness as to being trespasser
2. With MR of either:
a) (Attempted) theft
b) (Attempted) GBH
138
What is needed to satisfy the offence of aggravated burglary?
Requires all elements of either s 9(1)(a)/(b) as well as D being in possession of a weapon at the time of the burglary
D must know they have the item with them
- No need to prove they intended to use the weapon
s 9(1)(a): D must have weapon at time of entry
s 9(1)(b): D must have the weapon when the ulterior offence (theft/GBH) is committed
139
What is the AR and MR of fraud by false representation?
AR:
1. Making a representation
- May be express/implied
- May be by words/conduct
- May be to a machine (eg: inserting a card)
2. Which is false
MR:
1. Dishonesty
a) What was D's genuine and honest belief as to facts
b) Would ordinary and decent person objectively consider D's behaviour dishonest
2. Know/be reckless that the representation is false
3. Intend to make a gain/loss
- Immaterial whether such gain/loss has actually been made
140
What is the AR and MR for fraud by failing to disclose information
AR: Failing to disclose information when under a legal duty to do so
MR:
1. Dishonesty
2. Intending to make a gain/cause a loss
141
What is the AR and MR of fraud by abuse of position?
AR:
1. Occupy a relevant position
- Requires the existence of financial trust between D and V
2. Abuse that position
- Can be by a positive act or omission
MR:
1. Dishonesty
2. Intending to make a gain/loss
142
What is the AR and MR of simple criminal damage (or arson)?
AR:
1. Destroy/damage
- Still damaged even if it is temporary
2. Property
3. Belonging to another
- Anyone having:
a) Control/custody
b) Proprietary interest/right
c) A charge on it
(4. By fire)
MR:
1. Intention/recklessness as to destruction/damage
- Intent = aim/desire/purpose
- Recklessness =D foresaw risk of damage and it was objectively unreasonable for them to take the risk
2. Knowledge/recklessness as to the property belonging to another
- Must at least suspect/foresee property belongs to another
143
What is the AR and MR of aggravated criminal damage (or arson)?
AR: same as simple criminal damage (by fire)
MR:
1. Intention/recklessness as to destruction/damage
2. Intention/recklessness as to thereby endangering life
- Life does not need to be actually endangered
- The danger must arise from the damage caused, not the cause of damage
144
For what offence is the defence of lawful excuse available and what are the 2 forms of this offence?
For simple criminal damage/arson
1. Belief that the owner would have consented had they known
2. Belief that the damage was necessary to protect the property belonging to D or another
145
What are the 4 elements required to satisfy the lawful excuse defence (the form that it was necessary to protect the property belonging to another)
1. D acted to protect the property
2. D believed the property was in immediate need of protection
3. D believed the means of protection adopted were reasonable (objective)
4. The means adopted were objectively capable of protecting the property from damage
146
Describe what is required for self-defence
1. Did D honestly believe the force was necessary in the circumstances as they honestly believed them to be (subjective)
2. Was the level of force used necessary/reasonable? (objective)
Householder cases: applies to those who use self-defence while in a dwelling
- Possible to use force that is both reasonable and disproportionate, as long as it is not grossly disproportionate
147
What is needed to satisfy the offence of aggravated burglary?
Requires all elements of either s 9(1)(a)/(b) as well as D being in possession of a weapon at the time of the burglary
D must know they have the item with them
- No need to prove they intended to use the weapon
s 9(1)(a): D must have weapon at time of entry
s 9(1)(b): D must have the weapon when the ulterior offence (theft/GBH) is committed
148
What is the effect of intoxication on:
a) Self-defence
b) Statutory defences
a) When intoxicated, a mistake made about the need to use force in self-defence will be unreasonable if it resulted from the intoxication
=> cannot be relied on
b) Criminal damage/theft only require an honest belief
=> Even drunken, mistaken beliefs can be relied upon if they are honestly held by D
149
What is the AR and MR for attempts?
AR = to do an act which is more than merely preparatory to the commission of the full offence
- Begins when the preparatory acts come to an end and the defendant embarks on the crime proper
MR = an intent to commit/bring about the full consequences of the offence
- Recklessness alone is insufficient to constitute MR of an attempt
Impossibility is not a defence to an attempt
150
What is the AR and MR of accomplice liability?
AR = aiding/abetting/counselling/procuring commission of the principal offence
MR:
1. Intention to do the act: positive act of assistance
2. Knowledge of the circumstances of the principal offence: must know the essential matters which constitute the offence committed
- Do not need to know that these matters constitute a criminal offence
151
What is the rule regarding omissions and accomplice liability?
Remaining silent or failing to intervene at the scene of a crime where there is a right/duty to control the actions of the principal offender can amount to encouragement of the offence and lead to accomplice liability
152
What happens to the liability of the accomplice if the principal goes beyond the scope of the plan?
Accomplice must intend the offence that is carried out before they can be convicted of it
=> it is insufficient that the accomplice simply foresaw that the offence might occur
153
What are the accounting entries for money paid into client account?
DR Client Cash
CR Client Ledger
154
What are the accounting entries for money paid out of client account?
DR Client Ledger
CR Client Cash
155
What are the accounting entries for money paid into business account?
DR Business Cash
CR Business Ledger
156
What are the accounting entries for money transferred from client account to business account?
Client account:
1. DR Client Ledger
2. CR Client Cash
Business account:
1. CR Business Ledger
2. DR Business Cash
157
What are the accounting entries for a mixed cheque immediately split?
Business account:
1. CR Business Ledger
2. DR Business Cash
Client account:
1. CR Client Ledger
2. DR Client Cash
158
What are the accounting entries for a mixed cheque split after payment into client account?
1. Sum of money is paid into client account:
a) CR Client Ledger
b) DR Client Cash
2. Portion of that sum is withdrawn from client account:
a) DR Client Ledger
b) CR Client Cash
3. That portion is paid into the business account:
a) CR Business Ledger
b) DR Business Cash
159
What are the accounting entries for disbursement paid out of petty cash?
DR Business Ledger
CR Petty Cash
160
What are the accounting entries for when a bill of costs is issued?
DR Business Ledger
CR Profit Costs
161
What are the accounting entries when a relief is given by HMRC for a bad debt?
CR Bad debts account
DR HMRC account
162
When issuing an invoice to a client for fees due and any VAT chargeable, what are the accounting entries?
Record bill being issued:
1. DR Business Ledger (excluding VAT)
2. CR Profits Costs (excluding VAT)
Record VAT charged on invoice:
1. DR Business Ledger (VAT only)
2. CR HMRC account (VAT figure)
163
Define the agency and principal method for paying disbursements
Agency = when the invoice is addressed to client; pay using client money if there are sufficient funds
Principal = invoice is addressed to solicitor/firm; must pay costs of disbursements and VAT out of business money
164
What accounting entries are made when paying for disbursements under:
1. Agency method
2. Principal method
Agency method:
- Figure is costs and VAT combined
a) DR Client Ledger
b) CR Client Cash
Principal method
1. Payment of disbursement (excluding VAT):
a) DR Business Ledger
b) CR Business Cash
2. Payment of VAT on disbursement:
a) DR HMRC account
b) CR Business Cash
3. Charge VAT on disbursement:
- When the bill has been issued
a) DR Business Ledger
b) CR HMRC account
165
What are the accounting entries for interest earned on client money, which is held in the general client bank account?
1. The bank will pay any interest earned on the client account into the solicitor's business account
a) CR Interest Payable Ledger
b) DR Business Cash
2. Client's interest is transferred from business account to client account:
a) Payment out of business account
i) DR Interest Payable Ledger
ii) CR Business Cash
b) Payment into client account
i) CR Client Ledger
ii) DR Client Cash
166
When deposit money is transferred to a solicitor to hold as a stakeholder, what are the 2 options for the accounting entries that need to be made?
1. Record this in seller's ledger as long as it is clearly labelled in the details column that the money is held for both parties
a) DR Client Cash
b) CR Seller's Ledger Account
2. Open a separate stakeholder account in joint names
a) DR Client Cash
b) CR Joint Stakeholder Ledger Account
167
What are the accounting entries for completion?
If stakeholder account is used, first need to make an inter-client transfer:
1. DR Joint Stakeholder ledger account
2. CR Client's ledger account
For both options as stakeholder, you then pay money into client bank account:
1. DR Client Cash
2. CR Client Ledger
168
What accounting entries need to be made when professional charges are made on mortgage advance?
Usually agree for borrower to pay the costs charged to lender
1. Record profit costs charged to lender-client in their business ledger:
a) DR Business Ledger
b) CR Profit Costs
2. Transfer liability from lender's cost to buyer:
a) CR Business Ledger for lender
b) DR Business Ledger for borrower
169
What are the accounting entries for abatement on:
a) Client ledger account
b) Profit costs
c) HMRC/VAT account
Client ledger account:
1. CR: Profit Costs of reduction
2. CR: HMRC/VAT account of reduction
Profit costs:
DR entry of reduction
HMRC/VAT account:
DR entry of reduction
170
What are the accounting entries when a client pays a bill?
CR Client ledger (business section)
DR Business cash
