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Equity & Trusts CHIEF EXAMINER COMMENTS WITH SUGGESTED ANSWERS JUNE 2018 LEVEL 6 - UNIT - 5 EQUITY & TRUSTS Note to Candidates and Learning Centre Tutors: The purpose of the suggested answers is to provide candidates and learning centre tutors with guidance as to the key points candidates should have included in their answers to the June 2018 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which candidates may have included in their responses to the questions. Candidates will have received credit, where applicable, for other points not addressed by the suggested answers. Candidates and learning centre tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ comments contained within this report which provide feedback on candidate performance in the examination. CHIEF EXAMINER COMMENTS As a general observation, candidates answered two or three questions well, but did not give four good answers. This may be due to lack of preparation for the examination. Candidates are advised not to rely on the bare minimum of revision. CANDIDATE PERFORMANCE FOR EACH QUESTION SECTION A Question 1 This was a popular question with candidates and there was mixture of marks across the board. Candidates who did badly on this question showed very little or no knowledge of the area of law being examined. However, there were some very good answers from candidates who exhibited depth and Page 1 of 20 understanding in their answers. Many candidates passed this question with a Pass grade. SECTION B The most popular question with candidates was question 2. This was a charities question and there were some very good marks. Candidates enjoy studying charity law and so this was not surprising. Less able students however did not answer this well, but being very general in their answers or not exhibiting any relevant knowledge of this area of law. SUGGESTED ANSWERS LEVEL 6 - UNIT - 5 EQUITY & TRUSTS SECTION A Question 1(a) The general rule is that, if an attempted transfer of property to trustees is imperfect, the trust is not completely constituted. A gift to a donee will be imperfect if the transfer has not been properly correctly completed. Where consideration has been provided, the transfer may be treated as perfect in the eyes of equity even though in law it is not. Where there has been no consideration, however, no effective trust is created, since equity will not assist a volunteer. A failed gift cannot then be saved by treating it instead as a self-declaration of trust: if a donor intends to use one method to confer a benefit on a person but fails to do so effectually, equity will not save the gift (Milroy v Lord (1862)). Over the years, the courts have found a number of ways to avoid the harshness of the rule that equity will not perfect an imperfect gift. A gift is complete in equity as soon as the donor has done everything in his power to complete the transfer, despite the fact that formal requirements at law may still be outstanding. In Re Rose (1949) a transfer of shares was treated as complete in equity when the donor submitted the completed transfer form and share certificate to the company. The outstanding legal requirement of registration was not something in the donor’s power to do. A legitimate query may be raised, however, as to how the principle in Re Rose (1949) would apply if the directors of a private company were to refuse to register the transfer, as is their right, even though the donor had done all in his power. It had been thought that the Re Rose principle applied only where donor’s actions had been irrevocable. In Choithram v Pagarani (2000) and Pennington v Waine (2002), however, the crucial question was said to be simply whether it would be unconscionable for the donor to refuse to complete the transfer. These cases suggest the development of a new approach to the constitution of trusts, although this introduction of the inherently uncertain Page 2 of 20 concept of unconscionability has attracted criticism. 1(b) When a donor makes an imperfect gift during his lifetime, and the donee is subsequently appointed as the donor's executor or becomes the donor's administrator on intestacy, the gift is perfected because the donee obtains legal title to the donor's property, including the subject matter of the intended gift, in the donee's capacity as executor or administrator. There are four conditions for the rule in Strong v Bird (1874): The donor must have intended to make an inter vivos gift. Such donative intention must have persisted until the donor's death. The donee is appointed the donor's executor (or administrator, Re James (1935)) The subject matter of the intended gift must have been capable of enduring the death of the donor. In Re James (1935), Farwell J said, "The defendant by her appointment as one of the administrators has got the legal estate vested in her and she needs no assistance from equity to complete her title. Under these circumstances she cannot be compelled at the suit of persons claiming through the donor to surrender her property. It follows that in my judgment the plaintiff here must recognise the title of the defendant to the property and no steps should be taken to recover it from her." In criticism, the result may be contrary to the testator’s intentions/wishes. (c) A formally incomplete transfer may nevertheless be effective if it qualifies as a ‘donatio mortis causa’ (‘DMC’). The requirements are that (i) the gift is made in contemplation of death (Wilkes v Allington (1931)), (ii) the gift is conditional on death (Gardiner v Parker (1818)), and (iii) there is delivery of the property or of something representing ownership, (Cain v Moon (1896). This last requirement involves parting with dominion or control (Re Lillingston (1952) and Sen v Headley (1991).) So, in Birch v Treasury Solicitor (1951), a savings account was held to have been validly transferred under the DMC principle, by the handing over of the savings account book. Generally, all forms of personal property can form the subject-matter of a DMC. The principle was extended to incomplete transfers also of (unregistered) real property by the Court of Appeal in Sen v Headley (1991). To date there has been no case on registered land but it is presumed the rule would apply. DMCs are not without their critics given the fact that where there is a validly executed Will, the court is being asked to overturn the stated intentions of the testator. King v Chiltern Dog Rescue and Redwings Horse Sanctuary (2015) saw an appeal from the earlier decision that the deceased, when nearing the end of her life, had made a valid donatio mortis causa by delivering the title deeds of her house to her nephew, saying that he would need them after her death. She had made various failed attempts at wills giving him the house. The trial judge had found that those attempts indicated contemplation of death even though she was not suffering from any terminal illness. The Court Page 3 of 20 of Appeal reversed this decision and went out of its way to emphasise the need to strictly limit the concept, which can easily lead to fraudulent claims. On 14 July 2017, the Law Commission published its much-awaited consultation on the law of wills (Law Commission paper 231: ‘Making a Will’). One of the subjects under consultation is the future of the DMC. The consultation paper describes the DMC as an anomaly and asks contributors for their views on the abolition of the doctrine. Question 2 Tracing is a process that allows for the recovery of property (such as land or money) by the owner if it is taken involuntarily, and the owner has not consented to the transfer of title. This can be through theft, breach of trust, or mistake. Owners can recover their property and perhaps also any profits made from it, or in situations where the property cannot be recovered (as it has been mixed in with other property, or cannot be found), substitute property. The process has two steps, following and tracing. In Foskett v McKeown (2000), Lord Millett defined them by saying that "(Following and tracing) are both exercises in locating assets which may or may be taken to represent an asset belonging to the ([claimants) and to which they assert ownership. The process of following and tracing are, however, distinct.” Following is the process of following the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as the substitute for the old". There are a number of limitations to tracing at common law in the modern commercial world. Firstly, the Claimant must have legal title. A Beneficiary under a trust cannot trace property and then claim it at law. Secondly, the Property must be identifiable. Common Law tracing views property as physical asset and so it can only be used to trace the value of an asset in substitute provided it has not lost its identity. As a result it is more difficult where property has changed form (substituted/exchanged or mixed with money). Common Law tracing will be available in simple cases where property has been substituted, e.g. Taylor v Plumer (1815) (investments and bullion) or paid into separate bank account (Banque Belge pour L’Etranger v Hambrouck (1921)) and FC Jones & Sons v Jones (1996) where money had not been mixed.
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