Chief Examiner’s Report The purpose of the report is to provide feedback to centres and students on the students’ performance in the examination with recommendations about how any issues identified may be addressed. The target audience for this report are centre tutors and students. The report should be read in conjunction with the Suggested Answers for the examination. Unit Name: Level 6 - Unit 5 - Equity and Trusts Exam Session: JANUARY 2016 STUDENT PERFORMANCE OVERALL Overall the standard was comparable with previous cohorts. Strong candidates displayed a thorough knowledge of the subject, strong analytical skills together with the ability to apply the law and construct a legal argument. Three of the nineteen candidates, who sat the examination, attained merits and are to be congratulated on the quality of their answers. The most popular essay was A1. The most popular problem questions were B1 and B3. All candidates appeared to manage their time well and finished the paper. In the lower range, students attempted questions where they had insufficient knowledge of all the relevant aspects to gain a good mark. Some questions covered material taken from more than one unit which exposed those students who had been selective with their revision. Unsuccessful candidates also produced vague answers which failed to explain and analyse the relevant law sufficiently. Section A In this examination, students’ performance on the essays was comparable with their performance on the problem questions. Very good answers to the essay questions displayed a sound knowledge and understanding of the subject area, the ability to analyse the question and identify what it was asking candidates to discuss, together with the skill of constructing a strong legal argument supported by authorities. The temptation with essay questions is to describe the area of law and not focus on the issues raised by the question. A number of candidates denied themselves top marks by falling into this trap. Most of the questions asked candidates to ‘critically evaluate’, which involved giving a reasoned opinion on the point(s) in question and many answers ignored this. Section B The candidates who gained high marks produced strong answers to all parts of the questions. They identified all the issues arising from the facts, explained the relevant law thoroughly, supporting their points with a case or statutory provision, and applied the law in order to reach a conclusion. The following shortcomings were identified in the weaker scripts: Some students recited their notes without applying the law to the facts. In some cases students had insufficient knowledge of the detailed elements of the law to apply it effectively. They tended to produce superficial answers which failed to explain and analyse the relevant law sufficiently. Some students gave a lengthy explanation of the area of law (running to one or two pages) at the start of their answer before addressing the actual issues arising from the facts. It is better to explain the law and cite authority as that legal principle Page 1 of 3 becomes relevant to the issues raised by the question. This saves time and repetition. It also demonstrates stronger analytical skills. Time management Time management did not appear to cause any problems. Advice to students Students should ensure they revise a sufficient number of topics in detail in order to answer fully the required number of questions. Topics may be tested together in one question and therefore candidates cannot afford to ignore too many areas. It is beneficial to look at, and ideally practise writing answers to, the past papers which are available on the website. The suggested answers are a useful guide to the analytical style which gains good marks in essays and the identification of issues and application of the law for problem questions. STUDENT PERFORMANCE FOR EACH QUESTION: Section A Question 1 This was a popular essay question in which candidates were asked to discuss the rationale behind the courts enforcing fully secret and half secret trusts. Good answers suggested that the fraud theory may justify the enforcement of fully secret trusts (if such trusts are not enforced, the secret trustee could take beneficially). However the ‘dehors the will theory’ is more appropriate for half secret trusts. Good candidates gave examples drawn from case law to support the ‘dehors the will theory’. Very good answers identified some shortcomings in the theory. Question 2 This question was the least popular essay. However, the majority of those who attempted it fared well. Very good candidates distinguished themselves by giving detailed explanations of the state of mind required for each head of liability. Question 3 This essay question called for a discussion of the discretionary nature of specific performance and how it is awarded when the remedies at common law are inadequate. Students who knew the area fared well and gave examples drawn from case law. Some of the weaker answers strayed into a discussion of injunctions which was not called for by the question. Question 4 This question asked students to critically evaluate the circumstances in which gifts to charities, which proved to be impossible, could be saved from failure. A number of answers were disappointing because they displayed insufficient knowledge of the area. For example, weaker answers did not distinguish initial and subsequent failure and some candidates’ explanations of general charitable intent were very sketchy. Section B Question 1 This question concerned remedies for breach of trust against trustees. Half of the candidates chose this question and there were some very capable answers. Weaker answers did not recognise that payment of capital to a life tenant was a breach of trust and were superficial on the possible breaches of the trustees’ investment duties. Most answers handled proprietary remedies against Carol confidently although some applied the rule in Clayton’s case which is not used when tracing is against a guilty trustee. Question 2 Not many candidates attempted this problem question on the validity of a discretionary Page 2 of 3 trust, two purpose trusts and a gift to a non-charitable unincorporated association. There were some good answers. A number of candidates lost marks by not discussing the possibility that the discretionary trust might fail due to administrative unworkability. In relation to clause 2 of the will, some candidates did not consider whether the trust might be charitable (‘in financial need’ suggested poverty). Some candidates discussed Re Lipinski in relation to the gift to the Riverton Arts Society. As the Testatrix did not express a purpose, Re Recher was the relevant authority. Question 3 This was a popular problem question on formalities and there were many good answers. Some candidates did not appreciate that Maaz held an equitable interest in the Frishco shares. The stockbroker held the legal title. Therefore, students needed to consider s53(1)(c) LPA 1925, Grey v IRC and Vandervell v IRC and apply them to the facts. Arguably, the imperfect gift of the shares to Tariq could be saved using either proprietary estoppel or the unconscionability principle from Pennington v Waine. As regards the attempted creation of a trust over the cottage, some candidates did not separate the declaration of trust and the need to transfer the property to the trustees by deed. It is common for students to confuse ss.53(1)(b) and 52 of the Law of Property Act 1925 in this way but obviously detracted from the mark of those who were muddled. Some students missed the fact that Omar was Maaz’s executor and the relevance of Strong v Bird. A few candidates lost marks by reciting their notes without applying them to the facts. Question 4 (a) was a problem question where a father had transferred shares to his son for an illegal purpose. The starting point was the presumption of advancement which the father would have to rebut by evidence that he intended a resulting trust. Tribe v Tribe dictates whether evidence of the illegal purpose is admissible in these circumstances. Some students argued that the presumption of advancement should not apply as the son was an adult citing the Canadian case of Pecore v Pecore. This decision is not binding in the UK but credit was given if, students argued that the presumption of advancement was outdated and started with the presumption of resulting trust. In this case it was necessary to apply the principle in Tinsley v Milligan. Some students missed the relevant area of law and discussed how shares are transferred. Formalities were not relevant because the question made it clear that the shares had been transferred successfully. In Question 4(b), the claimant wanted to claim a share of a house which was in the sole name of her cohabitee. There were some good answers. It is important to separate the stages of 1) establishing the interest under a constructive trust (for which Lloyds Bank v Rosset is still the main authority) and 2) quantifying the interest where Stack v Dowden comes into play. Page 3 of 3 .