Examiners feedback Sem 1 2013 (3).docx - Examiners feedback 2013 Semester 1 exam General comments Most students did extremely well on Question

Examiners feedback Sem 1 2013 (3).docx - Examiners feedback...

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Examiners’ feedback 2013 Semester 1 exam General comments: Most students did extremely well on Question 1 (particularly pts 1 and 2). Questions 2 and 3 caused more problems. Students seemed to have assumed that investment must be somewhere on the paper, and directed themselves towards it in question 2. It was really not called for in any detail. Question 3 was deliberately set as a difficult question, as the optional assignment was very difficult. Virtually all students identified it as a Quistclose question; very few also discussed statutory formalities. Q 1 1. Advise L & M re validity and effect of deed The three certainties, formalities and constitution needed to be discussed. Certainty of intention appears to be satisfied for the entire deed. An objective test is applied: Byrnes v Kendle. K ‘decided to execute a trust deed’, took steps to constitute a trust. There is no reason to think there is no intention to create a trust. Certainty of subject matter is satisfied with respect to the Cairns property and the money. However, there is doubt about the subject matter of the royalties referred to in clause 2. This called for a discussion of future property. Is K trying to assign the income itself, or the contractual right to receive income? This looks like an attempt to assign income before it is earned. As it is not for consideration, it will be future property and unassignable. Williams, Norman. If it was an attempt to assign the contractual right to the royalties itself, (as she seems to be trying to deal with the first $50,000 plus the remainder) the assignment would need to comply with s 134 PLA – there is no evidence that notice has been given to publishers, so the assignment is not complete, but trustee can do that himself and perfect the transaction. – Anning, Corin v Paton, Norman. Only a handful of students discussed assignment. Further, there is the issue of the ‘remainder’ for Qin. This is likely to be uncertain subject matter: Mussourie Bank v Raynor. Very few students discussed this point. Constitution – we are told she took all necessary steps to transfer real estate, and handed him cheque for $500,000. Therefore, the trust is constituted with respect to that property. The problems with the royalties have been discussed above. Some students considered that constitution might be an issue if the cheque was not made payable to the trustee. This discussion was also acceptable. Statutory formalities are clearly satisfied. The greatest problem lies with certainty of object. Clause 1 – this appears to be a DT/trust power – there is an obligation to exhaust, but a discretion re selection. This will require criterion certainty for validity – the test needed to be stated with authority. The class is unlikely to be semantically certain, as the term ‘talented’ is too subjective, the term ‘singers’ is vague (professional singers?
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  • Three '18
  • Dr Susan Barkehall Thomas
  • Wills and trusts

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