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Institute of Legal Executives Level 6 Subject 38 INSTITUTE OF LEGAL EXECUTIVES LEVEL 6 - EQUITY & TRUSTS EXAMINER’S REPORT – AUTUMN 2009 Introduction The primary aim of this report is to do the following: • comments on overall performance by candidates in the Autumn 2009 Equity and Trusts examination; • advises on how performance might be improved; • indicates what should be contained in successful answers to the questions in the examination paper; • provides comment on performance in individual questions. • this is the final Equity and Trusts examination paper under the Level 6 Professional Higher Diploma in Law. If candidates have failed then they should consider sitting Equity and Trusts on the new Level 6 Professional Higher Diploma in Law and Practice. Information is available on the ILEX website at [email protected] Comment on Overall Performance This is a Level 6 paper and was, consequently, appropriately demanding. Successful candidates are therefore to be congratulated. The most common weaknesses were: 1. Poor legal problem solving skills; 2. Lack of adequate skills for tackling essay questions; 3. Poor structure and inadequate understanding of how to use the law to answer questions; 4. Lack of knowledge of the law of Equity and Trusts. Poor Legal Problem Solving Skills Common weaknesses included: failure to identify all the key issues raised by the problem questions; failure to identify the particular principles of law relevant to the problems; failure to state the law accurately and cite cases appropriately; failure to apply the law to the facts of problem questions in an appropriate manner or (in the case of a few candidates) to apply it to the facts at all. Lack Of Adequate Skills For Tackling Essay Questions Many candidates fail to appreciate that it is just as important when tackling essay questions, as it is with problem questions, to target the answer to the actual issues raised by the question. There was a common tendency to write a narrative on the whole law relating to a topic, instead of selecting relevant points and using those to address the actual question set. Answers often lacked Page 1 of 14 sufficient depth and detail appropriate to an examination at this level, with some candidates producing very short answers to essay questions. Poor structure and inadequate understanding of how to use the law to answer questions This was a particular issue with answers to problem questions. Some candidates started their answers with several pages of law, set out in the abstract with no reference to the facts of the problem and often no attempt to pick out the principles that were actually relevant. This was followed by a cursory discussion of the facts of the problem, often making only scant reference back to the previous explanation of the law. Some answers followed their explanation of the law with a mere recital of the facts and then gave a brief conclusion, without demonstrating how it was reached. A proper conclusion can only be arrived at after a careful application of relevant principles of law to the facts of the problem. Some answers failed to reach any conclusion or give the advice asked for. A few candidates answered some questions by merely setting out the provisions contained in a relevant statute, without any real attempt at discussing them or relating them to the question. Candidates cannot achieve a pass mark by merely reciting statutory sections, which could have been copied from statute books. See further comments under questions 7 and 8. A number of candidates also failed to use case law appropriately. What is required is a statement of the relevant principle/s from a case, not a recitation of the facts. Candidates will not gain credit for merely reciting the facts of a case, although a brief comparison with the facts in a problem question may sometimes be useful when applying the law; similarly, in essay questions, a candidate may legitimately use the facts of a case to illustrate a particular point that is being made. However, it is the legal principle which is the key part of any case. Some candidates merely listed case names and said that these cases were relevant, without any explanation of the cases or their relevance. Lack of Knowledge of The Law of Equity and Trusts An inadequate knowledge of basic principles and/or case law was shown by a number of candidates, meaning that they were unable to reach the standard required to pass the examination. A few candidates failed to mention any authority in their answers, which therefore read as if they were based on common sense rather than legal principles. A number of candidates appeared not to have revised sufficient topics to enable them to answer four questions fully. A small number of answers contained nothing of relevance to the particular question. This may have been due to misreading the question or the result of candidates finding they had not revised sufficient topics and deciding to write on what they had revised instead of what the question demanded. Either way, such answers are unlikely to score any marks. General Advice to Candidates Candidates are strongly advised to develop the skills of analysis required for the practical solution of problems. They need to practice spotting issues and should develop the skill of stating the rules of law succinctly. They should also practice Page 2 of 14 applying the law to the facts of a problem in order to arrive at a reasoned answer. With regard to essay questions, candidates are strongly advised to analyse the law and to be critical. They should pay particular attention to the wording of the question and discuss the relevant law, connecting their arguments to the actual issues raised by the question. Candidates should also avoid copying or reciting large sections from their statute books. An explanation of relevant sections should be given and then applied to the facts of a problem or discussed critically in relation to an essay question. The best way to develop these skills is to practice answering questions from ILEX past papers in this subject. Reference should also be made to examiner’s reports. Candidates should be familiar with how many questions are on the paper and how many they are required to answer. They should know how much they are able to write in three hours. If they discover that it is not very much, they should try to develop the skill of writing fuller, more detailed answers within the set time. When sitting the examination, candidates would do well to take a common sense attitude. Where they are required to answer four questions it is not only vital that they attempt four answers. It is also of great importance that they allocate time and effort effectively, so that they produce four full answers. Candidates should only attempt a question where they are able to tackle all parts. If this is not the case, they should choose a different question. Candidates should read the questions carefully. Thought should be given to structure when planning any answer, whether to a problem or essay question, before a candidate actually begins writing the answer. Question 1 Suggested Answer: Candidates were asked to consider whether Paul's wishes were valid and enforceable. In order to advise Oliver and Naomi on this, it was necessary to consider the rules on fully secret and half secret trusts. Candidates should have mentioned that these operate as an exception to s9 Wills Act 1837, which applies to gifts and trusts to take effect on death. They should have gone on to identify the gift to Naomi as involving a fully secret trust and that to Oliver as involving a half secret trust. Candidates should then have explained and applied the requirements for validity of secret trusts to the two provisions. (Unless valid, there would be no question of them carrying out Paul's wishes.) It was essential to explain the difference in the rules applying to fully and half secret trusts. For a fully secret trust, communication to the secret trustee of the existence of the trust – Wallgrave v Tebbs [1855] – and terms - Re Boyes [1884] - must take place before death. Re Keen [1937] held that the terms can be communicated by handing a sealed envelope to the secret trustee to be opened after the testator's death provided the secret trustee knows it contains the terms and accepts on that basis. These requirements were met in the case of Naomi. Page 3 of 14 The secret trustee must also accept and candidates needed to consider whether or not Naomi had accepted. She did not originally give a definite acceptance. stating that she needed to think it over. However, Moss v Cooper [1861] is authority for acceptance by 'silent acquiescence' and she would be deemed to have accepted by taking the envelope and not declining to act. For a half secret trust, the existence and terms must be communicated before or at the time of signing the will, as held in Re Keen and Re Bateman's WT [1970]. Candidates needed to apply this to the original conversation before the will, which may have been sufficient communication of the existence of the trust, and the delivery of the envelope containing the terms on the day after the will was signed. As the terms were delivered after the will, the half secret trust would not be valid and the money would result to Paul's estate. Good answers would also consider the need for consistency between the communication and the way it is referred to in the will, as discussed in Re Keen. Candidates also needed to consider the other issues arising.
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