FLK2 - Guided Discussion Practice Questions

A solicitor is acting for the buyer of a freehold property. The pre- contract searches and enquiries have revealed that the designated planning use for the property is use as offices within use class E of the Town and Country Planning (Use Classes) Order 1987. Following completion, the buyer wishes to open a wine bar at the property, which is a sui generis use. Investigation of title has not revealed any restrictive covenants related to use of the property.

 

Does the buyer need to apply for express planning permission in order to be able to use the property as a wine bar?

• No, because there is nothing on the title restricting the use of the property.

• No, because a change of use never constitutes development.

• No, because whilst the proposal constitutes a material change of use, planning permission is automatically granted under the Town and Country Planning (General Permitted Development) Order 2015 (‘GPDO’).

• Yes, because any change of use requires express planning permission.

• Yes, because the proposal constitutes development and will not be covered by the GPDO.

Answer explanation

Option C is correct – defendants can be liable for their omissions if they have a positive duty to exercise control over third parties but this principle does not apply to the facts of the claimant’s case. The defendants were not in a special (proximate) relationship with the vandals and would not be expected to exercise control over them.

 

Option A is only partially correct because, while the general rule is that there is no duty of care owed for omission, there are exceptions to this general rule.

 

Option B is also only partially correct because, while the courts can consider the wider ramifications of their decision (ie policy), this is not in itself cause of an exception to the general rule that there is no duty for omission.

 

Option D is wrong as, while the defendants may or may not have been at fault, this is not an issue that determines whether a duty of care is owed (it is, however, relevant to breach).

 

Option E is wrong as the statement is too absolute, ie there are exceptions (eg Home Office v Dorset Yacht Co Ltd [1970] AC 1004), but this exception does not apply to the claimant’s facts.

A testatrix signed her will with two witnesses present. The two witnesses signed at different times. Each signed in the presence of the testatrix but not in the presence of the other witness. The will contains an attestation clause.

 

The executor was present throughout the execution process. The testatrix has now died.

 

Will the executor be able to obtain a grant of probate of the will?

• Yes, because the will was validly executed and the attestation clause raises a presumption of due execution.

• No, because the will was not validly executed.

• Yes, but the executor will have to provide the Probate Registry with an affidavit of due execution.

• No, unless there is a court decision confirming validity of the will.

• Yes, but only if the witnesses acknowledged their signatures to each other.

Answer explanation

Option A is correct. The will was validly executed in accordance with s 9 Wills Act 1837. The testator signed in the presence of two witnesses as required and they each signed in the testator’s presence. The witnesses do not have to sign in each other’s presence. The attestation clause raises a presumption that the will was validly executed.

 

Option B is therefore wrong.

 

Option C is wrong. An affidavit of due execution is not required due to the presumption of due execution raised by the attestation clause. Affidavits are required only if there is no such presumption.

 

Option D is wrong. The will was properly executed as explained above. No court order is required.

 

Option E is wrong because the original execution was valid. There was no need for the witnesses to acknowledge their signatures to each other.

A man wrote out a will as follows:

 

‘I make this will in the hope that I will soon be married, so I leave everything to my

wife and declare this will to be irrevocable whatever may happen in the future.’

 

The will is validly executed.

 

A year later the man met a woman and, after a whirlwind romance, they were married. However, the marriage did not last and the couple are now divorced. Is the will valid?

• Yes, because it was made in contemplation of marriage.

• Yes, but the gift to the wife fails as a result of the divorce.

• Yes, because the testator declared the will to be irrevocable.

• No, because the will was revoked by the subsequent divorce.

• No, because the will was revoked by marriage.

Answer explanation

Option E is correct. A will is revoked by marriage.

 

Option A is wrong because in order to be saved from revocation the will must be made in contemplation of marriage to a particular person. A general expectation or hope of marriage is not sufficient.

 

Option B is wrong because, although the option sets out the usual effect of divorce on a gift in a will, on the facts this will had already been revoked.

 

Option C is wrong because a general declaration that a will is irrevocable is of no effect.

 

Option D is wrong because divorce does not revoke a will.

A firm of solicitors receives a number of payments from separate clients over the course of a week.

 

Which of the following is a receipt of pure client money?

• A cheque for £1,200 in payment of the firm’s bill for professional charges.

• A cheque for £50 in reimbursement of an as yet unbilled payment made from the firm’s business bank account.

• A cheque for £200 to cover a disbursement as yet unpaid.

• A cheque for £300,600 comprising £300,000 completion money on the client’s purchase of a flat and £600 in payment of the firm’s bill.

• A cheque for £100 in respect of a disbursement already paid by the firm.

Answer explanation

Option C is correct. Only the cheque for the unpaid disbursement falls within the definition of client money (in Rule 2.1). Options A, B and E are wrong as they all fall outside the definition and therefore represent a receipt of business money. Option D is a mixed receipt: the completion money is client money and the money in payment of the bill is business money.

A solicitor is instructed by a new client in a litigation matter. At the initial interview the solicitor asks the client to pay £500 generally on account of costs and disbursements. The client says that they will let the solicitor have a cheque for that sum within the next week. It is now five days after the initial interview and the client has not yet made any payment to the solicitor. The solicitor needs to pay a court fee of £100 on the client’s behalf.

 

Which of the following best explains which bank account the solicitor should use to pay the £100?

• Client, because disbursements must always be paid from the client bank account.

• Client, because the client’s cheque for £500 will arrive within the next two days

• Business, because the firm is holding insufficient funds on this client’s behalf.

• Business, because this is a payment of petty cash.

• Business, because disbursements must always be paid from the business bank account.

Answer explanation

Option C is correct. Generally, disbursements can be paid from either the business bank account or the client bank account, as appropriate; options A and E are accordingly wrong.

 

Option B is wrong; here the payment cannot be made from the client bank account because the firm is not holding any money for this client (Rule 5.3).

 

It is not a payment from petty cash and option D therefore is wrong.

A freehold land owner grants a tenant a lease for a term of two years at market rent. Nothing was recorded in writing and no fine/ premium was paid.

 

Has a legal lease has been created?

• No, because a deed is required to create a legal lease.

• Yes, because a two- year lease is always capable of being legal.

• No, but equity may intervene and recognise an equitable lease.

• No, because no fine or premium can be paid for a parol lease.

• Yes, because the lease complies with the parol lease exception.

Answer explanation

The correct option is E. A lease is capable of being legal. In order to be a legal lease a deed is required. However, certain leases for three years or less do not require a deed and can be created informally provided they fall into the parol lease exception. Option A is therefore wrong in relation to the facts.

 

The facts state that no fine or premium was paid. Option D is therefore wrong.

 

Option C is wrong as the lease is a legal lease and, in any event, if it were not, equity would not intervene as there is no written contract.

 

Option B correctly states that some leases for a term of three years or less can be created orally, but this is not the best answer as it does not take account of the formalities required to create a legal parol lease.

A solicitor acts for the owner of a freehold factory block (‘the Property’) subject to a mortgage (by deed) in favour of a bank (‘the Bank’). The Property is currently vacant since the owner’s business closed. The owner has not paid the mortgage payments for six months. The Bank believe the Property is worth £350,000 and the owner owes £370,000. The Bank would like to end the mortgage.

 

Which of the following is the best approach for the Bank to pursue?

• Take possession immediately with a view to redirecting income from the Property to the Bank.

• Exercise the power of sale and pursue a debt action against the owner for any shortfall.

• Pursue a debt action against the owner to recover the money owed to the Bank.

• Seek an order for foreclosure to bring the mortgage to an end and vest title in the Property in the Bank.

• Appoint a receiver to demand and receive income from the Property.

Answer explanation

The correct option is B. Exercise of the power of sale will end the mortgage. As the value of the Property is lower than the debt, the Bank can pursue a debt action against the owner for the difference.

 

Taking possession, pursuing only a debt action and appointing a receiver do not end the mortgage. Therefore, options A, C and E are wrong.

 

Foreclosure would end the mortgage. However, it is not in the Bank’s interest to foreclose as this would extinguish the mortgage and leave the Bank with no remedy to recover any shortfall from the owner. Option D is not therefore the best answer.

During a telephone conversation with a friend, a manager asked the friend whether she would look after her flat in Nottingham and transfer that flat to her friend’s son when he turned 25 years of age. The son is currently aged 15 years. The friend agreed. The manager then wrote to a solicitor who was looking after the manager’s affairs. The manager advised the solicitor that, going forward, the friend would ‘hold my flat in Nottingham on trust’.

 

Which of the following statements best describes why the trust is not enforceable?

• The trust is not enforceable because during the telephone conversation with the friend, the manager never used the word ‘trust’.

• The trust is not enforceable because there is no certainty of subject- matter.

• The trust is not enforceable because the manager cannot delay the son’s entitlement to the flat beyond the age of 18 years.

• The trust is not enforceable because the manager must have written to the friend to record that the flat would be transferred to the son.

• The trust is not enforceable because the manager has not set out all the material terms of the trust when writing to the solicitor.

Answer explanation

Option E is correct. The manager is attempting to create a trust over land. She must therefore comply with the requirements of s 53(1)(b) of the LPA 1925, namely that the declaration of trust must be evidenced in signed writing. The letter to the solicitor does not satisfy this formality, as it does not record the material terms of the trust. For instance, it does not identify who is the beneficiary under the trust and when his interest will vest. The trust therefore is unenforceable.

 

Option A is wrong. Just because the manager did not use the word ‘trust’ when speaking to the friend does not make the trust unenforceable. It is clear from the wording she used that a trust was intended. The friend had to look after the flat and then distribute it to someone else. This describes the classic role of a trustee.

 

Option B is wrong. Assuming that the manager has only one flat in Nottingham (and there is nothing to suggest that this is not the case), then there will be sufficient certainty of subject- matter. Objectively speaking, we know what property will be held under trust.

 

Option C is wrong. The manager can delay the son’s entitlement to the flat, so long as she does not offend the rule against remoteness of vesting. Given that the son’s interest will vest after 10 years, this is not an issue.

 

Option D is wrong. Whilst s 53(1)(b) of the LPA 1925 requires that the manager record the material terms of the trust in signed writing, she does not need to send that written record to the friend (although clearly such a course of action would be prudent). Had the letter to the solicitor set out all the material terms of the trust, that would have been sufficient.

A trustee steals £50,000 from a trust. She transfers £20,000 of the money to her daughter who uses the money to pay off her credit card debts. She transfers the remaining £30,000 to her son who uses the money as a deposit towards a flat. The trustee and her son are facing bankruptcy proceedings.

 

Which of the following claims is most likely to give the beneficiaries a positive outcome?

• A claim for personal recipient liability against both the daughter and the son.

• A proprietary claim to recover trust property from both the daughter and the son.

• A claim for personal recipient liability against the daughter; a proprietary claim against the son.

• A proprietary claim against the daughter; a claim for personal recipient liability against the son.

• A claim for personal recipient liability against the daughter; a claim for personal accessory liability against the son.

Answer explanation

Option C is correct. The daughter has received trust property but has dissipated it by using it to pay off her credit card debts. There is no point bringing a proprietary claim against the daughter. However, depending on whether her state of knowledge as to the origins of the money she received made it unconscionable for her to spend that money, a claim for personal recipient liability might be successful.

 

The son has received trust property, which might be traceable into the flat. The beneficiaries should therefore assert a proprietary claim against the flat. However, the son is facing bankruptcy proceedings, and therefore there is unlikely to be any practical purpose in bringing any personal claim against him.

 

The son’s bankruptcy means that bringing a personal claim against him would be practically worthless. As a result, options A, D and E are wrong. (Option E is also wrong because there is nothing on the facts to suggest that the son has assisted his mother’s breach of trust.)

 

 The fact that the daughter has dissipated the trust property she received renders meaningless a proprietary claim against her. As a result, options B and D are wrong.

A defendant throws a punch towards a man after they argue outside a pub, but he hits the woman beside the man instead. The impact is such that she is knocked unconscious and slumps back against the garden wall. The defendant picks the woman up but, as he tries to move her back into the pub, she slips from his grasp. She bangs her head on the pavement and dies from a fractured skull.

 

Which of the following statements correctly describes the defendant’s liability for the woman’s death?

• The doctrine of transferred malice does not apply because the defendant’s intention to punch the man cannot be transferred to the woman.

• There is no need to consider transferred malice because the defendant punched the woman and the mens rea of assault includes recklessness.

• The doctrine of transferred malice would apply if the man had intended to punch the wall rather than hit a person.

• The man is not liable for the woman’s death because the actus reus and mens rea do not coincide in time.

• The man is not liable for the woman’s death because the application of unlawful force and the act causing the woman’s death are separate in time.

Answer explanation

B is the correct option. Where the offence may be committed recklessly, there is no need to consider transferred malice as the defendant is only required to foresee the risk of any harm to anyone.

 

Option A is wrong as the doctrine of transferred malice will apply. The defendant’s intention to punch the man may be transferred to the woman as he commits the actus reus of assault against her and this is the same offence which he intends for the man. Option C is also wrong. Malice may be transferred from person to person, or from object to object, but not where the actus reus and mens rea relate to different types of offences. In this example, the man commits assault but intends criminal damage.

 

Option D does not correctly describe the man’s liability. Where a combination of events has led to the unlawful outcome, the courts have interpreted these consecutive events as a ‘single transaction’. This is a way of circumventing the requirement for the actus reus and the mens rea to coincide in time. Option E is wrong as the unlawful application of force (hitting the woman) and the eventual act causing death (dropping her) are part of the same sequence of events, so the fact there was a lapse in time between the two does not enable the man to escape liability.