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#equity #law #secret-trust
By the Wills Act 1837, s 9 ‘no will shall be valid unless:
  1. It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
  2. It appears that the testator intended by his signature to give effect to the will: and
  3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  4. Each witness either:
    1. Attests and signs the will; or
    2. Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

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Flashcard 1375511383308

Tags
#certainties #equity
Question
"She knows what she has to do" was too vague to demonstrate intention.
Answer
Kasperbauer v Griffiths


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Flashcard 1375512694028

Tags
#certainties #equity
Question
"Knowing his wishes" and "giving what is appropriate" were too vague to demonstrate intention.
Answer
Margulies v Margulies


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Flashcard 1375515577612

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#crime #law #oapa
Question
The defendant must cause the victim to believe he can and will carry out the threat of force. [ case ]
Answer
R v Lamb [1967] 2 QB 981 (CA)


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The defendant must cause the victim to believe he can and will carry out the threat of force. R v Lamb [1967] 2 QB 981 (CA)

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Flashcard 1375518461196

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#crime #law #oapa
Question
FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire.
Answer
R v Lamb [1967] 2 QB 981 (CA)


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R v Lamb [1967] 2 QB 981 (CA) FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant poin

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Flashcard 1375520296204

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#crime #law #oapa
Question
R v Lamb [1967] 2 QB 981 (CA) FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since [...].
Answer
the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire


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This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since <span>the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire.<span><body><html>

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Flashcard 1375521344780

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#crime #law #oapa
Question
For an assault, the victim must apprehend physical violence
Answer
R v Ireland


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re the apprehension is of immediate psychological harm, charges under other statutes, such as the Protection from Harassment Act 1997 (study of which is outside the remit of this course), may be more suitable. It is, therefore, clear that, <span>for an assault, the victim must apprehend physical violence.<span><body><html>

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Flashcard 1375523179788

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#crime #law #oapa
Question
It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the [ statute ]
Answer
Offences Against the Person Act 1861 (OAPA 1861), s 47


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It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s 47

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Flashcard 1375525014796

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#crime #law #oapa
Question
It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s [...]
Answer
47


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d>It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s 47<html>

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Flashcard 1375527111948

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#crime #law #oapa
Question
Words spoken can also negate an assault.
Answer
Tuberville v Savage (1669) 1 Mod Rep 3


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Words spoken can also negate an assault. In Tuberville v Savage (1669) 1 Mod Rep 3

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Flashcard 1375529471244

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#crime #law #oapa
Question
The mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence.
Answer
R v Venna [1976] QB 421


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The Court of Appeal in R v Venna [1976] QB 421 held that the mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence.

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Flashcard 1375531306252

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#crime #law #oapa
Question
The case of [ case ] confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.
Answer
R v Savage; Parmenter [1992] 1 AC 714 (HL)


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The case of R v Savage; Parmenter [1992] 1 AC 714 (HL) confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.

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Flashcard 1375533141260

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#crime #law #oapa
Question
A battery can take place through a person's clothes
Answer
R v Thomas (1985) 81 Cr App R 331


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R v Thomas (1985) 81 Cr App R 331: '... there could be no dispute that if you touch a person’s clothes while he's wearing them that is equivalent to touching them.' (Per Ackner LJ.) </sp

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Flashcard 1375536024844

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#crime #law #oapa
Question
A battery is 'the actual intended use of unlawful force to another person without his consent'
Answer
Fagan v MPC [1969] 1 QB 439


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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375539432716

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#crime #law #oapa
Question
A battery is 'the [...] to another person without his consent': Fagan v MPC [1969] 1 QB 439.
Answer
actual intended use of unlawful force


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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375540481292

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#crime #law #oapa
Question
A battery is 'the actual intended use of unlawful force [...] without his consent': Fagan v MPC [1969] 1 QB 439.
Answer
to another person


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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375541529868

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#crime #law #oapa
Question
A battery is 'the actual intended use of unlawful force to another person [...]': Fagan v MPC [1969] 1 QB 439.
Answer
without his consent


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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375544413452

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#crime #law #oapa
Question
The MR for battery includes the reckless application of force.
Answer
R v Ireland


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The House of Lords confirmed this definition in the case of Ireland and further confirmed that it includes the reckless application of force.

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Flashcard 1375546248460

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#crime #law #oapa
Question
Force includes the merest touching.
Answer
Collins v Wilcock [1984] 3 All ER 374


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Force includes the merest touching. In Collins v Wilcock [1984] 3 All ER 374 Goff LJ stated: 'The fundamental principle, plain and incontestable, is that every person's body is inviolate … Any touching of anot

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Flashcard 1375548083468

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Question
FACTS: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube of concentrated acid. He poured some of the acid onto a piece of paper, but hearing footsteps outside, he panicked and poured the rest of the acid into the upturned nozzle of a hot air hand/face drier. The footsteps receded and he re-joined the chemistry lesson intending to return later to deal with the acid in the drier. Another pupil used the drier and the acid was ejected on to his face, causing scarring. HELD: Although he was acquitted because of a lack of mens rea, the Court of Appeal stated that this had satisfied the actus reus of battery.
Answer
DPP v K [1990] 1 WLR 1067


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DPP v K [1990] 1 WLR 1067 FACTS: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube

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Flashcard 1375549918476

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#crime #law #oapa
Question
The application of force need not be aggressive.
Answer
Faulkner v Talbot [1981] 3 All ER 468


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The application of force need not be aggressive. Faulkner v Talbot [1981] 3 All ER 468 HELD: A battery is an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily

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Flashcard 1375551753484

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#crime #law #oapa
Question
The force need not be applied directly. Most batteries are inflicted directly e.g. by the defendant hitting the victim with or without a weapon or throwing a missile at the victim. However, a battery can be indirect.
Answer
R v Martin (1881) 8 QBD 54


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>The force need not be applied directly. Most batteries are inflicted directly e.g. by the defendant hitting the victim with or without a weapon or throwing a missile at the victim. However, a battery can be indirect. R v Martin (1881) 8 QBD 54 FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court

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Flashcard 1375554637068

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#crime #law #oapa
Question
FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court also gave the example of D digging a pit which V then falls into as being an indirect battery.
Answer
R v Martin (1881) 8 QBD 54


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R v Martin (1881) 8 QBD 54 FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court also

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Flashcard 1375556472076

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#crime #law #oapa
Question
For the purposes of OAPA 1861, s 47 "assault" has been interpreted to mean either assault or battery
Answer
DPP v Little [1992] QB 645 (DC)


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There must be an 'assault'. This has been interpreted to mean that there must be either an assault or battery (DPP v Little [1992] QB 645 (DC) and R v Ireland; Burstow [1998] AC 147). Both the actus reus and the mens rea of either an assault or battery must be established.

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Flashcard 1375558307084

Tags
#crime #law #oapa
Question
Assault Occasioning Actual Bodily Harm
Answer
OAPA 1861, s 47


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Assault Occasioning Actual Bodily Harm The OAPA 1861, s 47 provides: 'Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding fi

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Flashcard 1375560142092

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#crime #law #oapa
Question
OAPA 1861, s 47
Answer
Assault Occasioning Actual Bodily Harm


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Assault Occasioning Actual Bodily Harm The OAPA 1861, s 47 provides: 'Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding fi

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Flashcard 1375563025676

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Question
In [ case ], the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.
Answer
R v Miller [1954] 2 QB 282


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In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be se

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Flashcard 1375564860684

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#crime #law #oapa
Question
In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include '[...] calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.
Answer
any hurt or injury


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In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.<

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Flashcard 1375565909260

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#crime #law #oapa
Question
In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury [...]'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.
Answer
calculated to interfere with the health or comfort of the victim


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In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.

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Flashcard 1375566957836

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Question
In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but [...].
Answer
must be more than transient and trifling


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span>In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but <span>must be more than transient and trifling.<span><body><html>

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Flashcard 1375568006412

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#crime #law #oapa
Question
Actual bodily harm may include psychiatric injury
Answer
R v Chan-Fook [1994] 1 WLR 689


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In R v Chan-Fook [1994] 1 WLR 689 actual bodily harm was held to include psychiatric injury, although Hobhouse LJ emphasised: '… it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselve

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Flashcard 1375572200716

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#crime #law #oapa
Question
A momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.
Answer
T v DPP [2003] Crim LR 622


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In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.

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Flashcard 1375574035724

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Question
In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an [...].
Answer
injurious impairment of the victim's sensory functions


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In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.

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Flashcard 1375576657164

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Question
Cutting hair falls within the scope of ABH
Answer
DPP v Smith [2006] EWHC 94 (Admin)


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DPP v Smith [2006] EWHC 94 (Admin) FACTS: Here the defendant, Mr Smith, cut off his estranged girlfriend's ponytail and some further hair from the top of her head. It was argued on behalf of Mr Smith that this act did not

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Flashcard 1375578492172

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Question
There is no additional MR requirement for Assault Occasioning ABH
Answer
R v Savage, R v Parmenter [1992] 1 AC 699


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In R v Savage, R v Parmenter 1992] 1 AC 699. Lord Ackner stated: 'Can a verdict of assault occasioning actual bodily harm be returned upon proof of an assault together with proof that actual bodily harm was occasione

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Flashcard 1375580327180

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#crime #law #oapa
Question
Malicious Wounding or Inflicting Grievous Bodily Harm
Answer
The OAPA 1861, s 20


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Malicious Wounding or Inflicting Grievous Bodily Harm The OAPA 1861, s 20 provides: 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon

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Flashcard 1375582162188

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#crime #law #oapa
Question
The OAPA 1861, s 20
Answer
Malicious Wounding or Inflicting Grievous Bodily Harm


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Malicious Wounding or Inflicting Grievous Bodily Harm The OAPA 1861, s 20 provides: 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon

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Flashcard 1375583997196

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Question
To constitute a "wound" there need only be a break in the skin. The injury need not be serious so long as this criteria is met.
Answer
C (a minor) v Eisenhower [1984] QB 331


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In C (a minor) v Eisenhower [1984] QB 331 it was held that the rupture of blood vessels internally is not sufficient to constitute a wound. There must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken. It is important to realise that if there is proof of a wounding, the actual injury need not be severe; any breaking of the skin will suffi

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Flashcard 1375585832204

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#crime #law #oapa
Question
There may be an infliction of grievous bodily harm contrary to the OAPA 1861, s 20 without an assault being committed.
Answer
R v Wilson [1984] AC 242


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n>Infliction This word has proved difficult to determine in the past due to questions as to what was necessary to amount to an 'infliction', i.e. was an assault a pre-requisite? However following the case of R v Wilson [1984] AC 242, it was decided that there could be an infliction of grievous bodily harm contrary to the OAPA 1861, s 20 without an assault being committed. <span><body><html>

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Question
Grevious Bodily Harm means "serious harm"
Answer
R v Saunders [1985] Crim LR 230


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In DPP v Smith [1961] AC 290, the House of Lords held that the words 'grievous bodily harm' simply mean 'really serious harm'. In Saunders [1985] Crim LR 230, it was decided that it would not be a misdirection to leave out the word 'really'; the words 'serious harm' would suffice.

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In [ case ], the Court of Appeal held that, in deciding whether or not the injuries sustained were 'grievous', the jury should consider the effect of the injuries on the victim, taking into account the victim's age and health. You can also look at the totality of the injuries. This case concerned a baby with endless cuts and bruises which on their own would not have been enough but taken together, could amount to serious harm
Answer
R v Bollom (2004) 2 Cr App R 6


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In R v Bollom (2004) 2 Cr App R 6, the Court of Appeal held that, in deciding whether or not the injuries sustained were 'grievous', the jury should consider the effect of the injuries on the victim, taking into accou

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Question
"Maliciously" means 'intentionally or recklessly'.
Answer
R v Savage; Parmenter [1992] 1 AC 699


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In R v Savage; Parmenter [1992] 1 AC 699, the House of Lords reaffirmed the interpretation of maliciously as laid down R v Mowatt [1968] 1QB 421: 'It is quite unnecessary that the accused should have foreseen that

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Question
Wounding or Causing Grievous Bodily Harm with Intent
Answer
OAPA 1861, s 18


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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some

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Question
OAPA 1861, s 18
Answer
Wounding or Causing Grievous Bodily Harm with Intent


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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some

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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall [...] by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer
unlawfully and maliciously


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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …' Aga

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Question
Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously [...] wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer
by any means whatsoever


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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

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Question
Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously by any means whatsoever [...], with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer
wound or cause grievous bodily harm to any person


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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

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Question
Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with [...] … shall be guilty of an offence …'

Answer
intent … to do some grievous bodily harm to any person


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head>Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'<html>

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Question
Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence, as in all cases of alleged psychiatric injury
Answer
R v Ireland


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Psychiatric injury may amount to GBH (Ireland) if sufficiently serious, but its cause and effect will need to be proved by expert evidence, as in all cases of alleged psychiatric injury

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Question
MR for OAPA 1861, s 20
Answer
It is enough to intend or foresee (i.e. be reckless) some harm, however slight.


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The mens rea element is the key distinguishing feature between the OAPA 1861, ss 18 and 20. Under the OAPA 1861, s 20 it is enough to intend or foresee (i.e. be reckless) some harm, however slight. Whereas, for the OAPA 1961, s 18 the defendant must actually intend to cause harm which amounts in law t

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Question
MR for OAPA 1961, s 18
Answer
The defendant must actually intend to cause harm which amounts in law to grievous bodily harm. Recklessness is not enough.


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><head>The mens rea element is the key distinguishing feature between the OAPA 1861, ss 18 and 20. Under the OAPA 1861, s 20 it is enough to intend or foresee (i.e. be reckless) some harm, however slight. Whereas, for the OAPA 1961, s 18 the defendant must actually intend to cause harm which amounts in law to grievous bodily harm (serious harm). Recklessness is not enough. Note, where the actus reus is a wound, the men

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Question
The OAPA 1861, s 24 provides:

'Whosoever shall [...] administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer
unlawfully and maliciously


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The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be

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Question
The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously [...] any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer
administer to or cause to be administered to or taken by any other person


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The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to impr

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Question
The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person [...], with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer
any poison or other destructive or noxious thing


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The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.' &

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Question
The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with [...], shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer
intent to injure, aggrieve or annoy such person


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d><head>The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.' <html>

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Question
The OAPA 1861, s [...] provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer
24


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The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious th

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In [ case ], the House of Lords stated that the OAPA 1861, s 23 (and, presumably, the OAPA 1861, s 24) creates three distinct offences: (a) administering to; (b) causing to be administered to; and (c) causing to be taken by any other person any poison or other destructive or noxious thing.
Answer
R v Kennedy [2007] UKHL 38


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In R v Kennedy [2007] UKHL 38, the House of Lords stated that the OAPA 1861, s 23 (and, presumably, the OAPA 1861, s 24) creates three distinct offences: (a) administering to; (b) causing to be administered to; an

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With intent to injure, aggrieve or annoy It will be sufficient for the prosecution to prove that the defendant intended to injure, aggrieve, or annoy, either by the effects of the administration itself, or by some ulterior motive.
Answer
R v Hill (1985) 81 Cr App R 206 (CA)


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h intent to injure, aggrieve or annoy It will be sufficient for the prosecution to prove that the defendant intended to injure, aggrieve, or annoy, either by the effects of the administration itself, or by some ulterior motive. In the case of <span>R v Hill (1985) 81 Cr App R 206 (CA), Robert Goff LJ stated: 'We have no doubt that, in considering whether in any particular case the accused acted "with intent to injure", it is necessary to have r

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A substance is noxious if it is hurtful, unwholesome or objectionable. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given.
Answer
R v Marcus [1981] 2 All ER 833


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Poison, destructive or noxious thing R v Marcus [1981] 2 All ER 833. FACTS: In this case 'poison, destructive or noxious thing' was broadly interpreted. It had been argued on behalf of the defendant that tablets she had administered were intrinsicall

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A substance is noxious if it is [...]. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given. (R v Marcus [1981] 2 All ER 833)
Answer
hurtful, unwholesome or objectionable


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A substance is noxious if it is hurtful, unwholesome or objectionable. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given. (R v Marcus [1981] 2 All ER 833

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Question
The OAPA 1861, s [...] provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
23


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The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious th

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Question
The OAPA 1861, s 23 provides:

'Whosoever shall [...] administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
unlawfully and maliciously


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The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as th

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Question
The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously [...] any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
administer to or cause to be administered to or taken by any other person


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The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilt

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Question
The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person [...], so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
any poison or other destructive or noxious thing


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The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof sha

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Question
The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as [...], or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
thereby to endanger the life of such person


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><head>The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceedi

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Question
The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as [...], shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer
thereby to inflict upon such person any grievous bodily harm


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: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as <span>thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.' <span><body><html>

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Question
For the purpose of OAPA s. 23 a 'noxious thing' is 'any thing liable to injure in common use'.
Answer
R v Cato [1976] 1 All ER 260


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In R v Cato [1976] 1 All ER 260, the court considered whether heroin could be a noxious thing. Lord Widgery CJ stated: 'What is a noxious thing, and in particular is heroin a noxious thing? The authoritie

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Question
Spraying the noxious thing in V's face qualifies as 'administering' for the purposes of OAPA ss. 23 & 24.
Answer
R v Gillard (1988) 87 Cr App R 189


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n>Offence (a) is committed where D administers the noxious thing directly to V, as by injecting V with the noxious thing, holding a glass containing the noxious thing to V's lips, or (as in R v Gillard (1988) 87 Cr App R 189 ---- see below) <span>spraying the noxious thing in V's face.<span><body><html>

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Question
Silence is capable of being an assault.
Answer
R v Ireland


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Wilson [1955] 1 All ER 744 Lord Goddard stated that the words 'get out the knives' would, on their own, be sufficient to constitute an assault. This opinion was merely obiter. The issue does appear to have been resolved in the decision on <span>R v Ireland; Burstow [1998] AC 147. Technically, on this issue, the comments made by their Lordships were obiter since the defendants in these two cases had repeatedly made silent telephone calls

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Question
[ case ] suggested that a half-secret trust of land (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided before the validity of half-secret trusts was firmly established in Blackwell v Blackwell).
Answer
Re Baillie (1886) 2 TLR 660


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Re Baillie (1886) 2 TLR 660 suggested that a half-secret trust of land (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided befo

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Question
Re Baillie (1886) 2 TLR 660 suggested that a [...] (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided before the validity of half-secret trusts was firmly established in Blackwell v Blackwell).
Answer
half-secret trust of land


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Re Baillie (1886) 2 TLR 660 suggested that a half-secret trust of land (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided before the validity of half-secret trusts was f

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Question
Equity, however, will not permit a trustee to use the requirements of the Wills Act fraudulently to keep the property, but will ensure that they hold it on trust
Answer
McCormick v Grogan (1869) LR 4 HL 82.


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It is clearly possible for an intended trustee fraudulently to keep the property, where there is nothing in the will to indicate that they hold on trust. Equity, however, will not permit them to use the requirements of the Wills Act to keep the property, but will ensure that they hold it on trust: McCormick v Grogan (1869) LR 4 HL 82.

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Question
The trust will fail if the secret trustee predeceases the testator or disclaims the gift. (In the case of an ordinary gift by will to a person who predeceases the testator, the gift normally lapses, i.e. fails.)
Answer
Obiter in 'Re Maddock [1902] 2 Ch 220' (Concerning Fully Secret Trusts)


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It was said obiter in the Court of Appeal in Re Maddock [1902] 2 Ch 220 (which concerned a fully secret trust) that the trust will fail if the secret trustee predeceases the testator or disclaims the gift. (In the case of an ordinary gift by will to a person who predeceases the testator, the gift normally lapses, i.e. fails.)

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Question
Where a trustee of a half-secret trust dies the trust still subsists because ‘[...]’, so the executor will carry out the trust if it is possible to prove the terms of the trust despite the trustee’s death.
Answer
equity will not allow a trust to fail for want of a trustee


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Where a trustee of a half-secret trust dies the trust still subsists because ‘equity will not allow a trust to fail for want of a trustee’, so the executor will carry out the trust if it is possible to prove the terms of the trust despite the trustee’s death.

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Question
Where a trustee of a half-secret trust dies the trust still subsists because ‘equity will not allow a trust to fail for want of a trustee’, so the executor will carry out the trust if [...].
Answer
it is possible to prove the terms of the trust despite the trustee’s death


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Where a trustee of a half-secret trust dies the trust still subsists because ‘equity will not allow a trust to fail for want of a trustee’, so the executor will carry out the trust if it is possible to prove the terms of the trust despite the trustee’s death.

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Question
However, in [ case ] (which concerned a half-secret trust), it was said, also obiter, in the House of Lords that the trustee of a fully secret trust will not be allowed to defeat the testator’s purpose by renouncing the legacy. The latter view seems right in principle.
Answer
Blackwell v Blackwell


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However, in Blackwell v Blackwell (which concerned a half-secret trust), it was said, also obiter, in the House of Lords that the trustee of a fully secret trust will not be allowed to defeat the testator’s purpose by

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Question
Whenever the trust is communicated, it will fail if the will allows for future communication.
Answer
Re Bateman’s Will Trusts [1970] 1 WLR 1463


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In Re Bateman’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court

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Question
In [ case ], the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was invalid.
Answer
Re Bateman’s Will Trusts [1970] 1 WLR 1463


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In Re Bateman’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court

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Question
In Re Bateman’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was [...].
Answer
invalid


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n’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was <span>invalid.<span><body><html>

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Question
In [ case ], property was left to two people to dispose of ‘as may be notified by me to them’ or either of them ‘during my lifetime’.
A sealed envelope containing the terms of the trust was given to one of the trustees before the will was executed. The Court of Appeal held that the trust failed because:
  1. The will referred to a future communication, which was inconsistent with a communication already made, so the trust would fail for inconsistency with the will;
  2. There was a reference to future communication, which was not permissible.
Answer
Re Keen [1937] Ch 236


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In Re Keen [1937] Ch 236, property was left to two people to dispose of ‘as may be notified by me to them’ or either of them ‘during my lifetime’. A sealed envelope containing the terms of the trust was gi

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Question
Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of arrangements made outside the terms of the will and so which should be unaffected by the Wills Act.
Answer
Re Young [1951] Ch 344


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If the secret beneficiary under either type of secret trust witnessed the will one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of arrangements made outside the terms of th

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Question
If the secret beneficiary under either type of secret trust witnessed the will one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of [...] and so which should be unaffected by the Wills Act.
Answer
arrangements made outside the terms of the will


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one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of <span>arrangements made outside the terms of the will and so which should be unaffected by the Wills Act.<span><body><html>

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Question
In half-secret trusts, communication cannot take place after the will.
Answer
Re Keen


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In Re Keen (above), the court referred to obiter statements in the speeches in Blackwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would violate s 9 of the Wills Act’.

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Question
In Re Keen (above), the court referred to obiter statements in the speeches in Blackwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would [...]’.
Answer
violate s 9 of the Wills Act


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kwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would <span>violate s 9 of the Wills Act’. <span><body><html>

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Question
A witness to a will cannot benefit under it.
Answer
The Wills Act 1837, s 15


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The Wills Act 1837, s 15 provides that a witness to a will cannot benefit under it. If a half- secret trustee were to witness the will, that should not defeat the trust as the will shows that he is a trustee and s 15 provides that any benefit to a witness is void. </sp

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Question
If a half- secret trustee were to witness the will, that should not defeat the trust as [...] and s 15 provides that any benefit to a witness is void.
Answer
the will shows that he is a trustee


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If a half- secret trustee were to witness the will, that should not defeat the trust as the will shows that he is a trustee and s 15 provides that any benefit to a witness is void.

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Question
Established the validity of half-secret trusts
Answer
Blackwell v Blackwell [1929] AC 318


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Hence the courts had to find some other justification for enforcing half-secret trusts. Their validity was not firmly established until the decision of the House of Lords in Blackwell v Blackwell [1929] AC 318. By codicil, £12,000 was left to five people to be applied ‘for the purposes indicated by me to them’. The terms of the trust were communicated before the codicil was executed. The Ho

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Question
If there is a clear intention to create a trust but the half-secret trust is not valid, there will be [...].
Answer
a resulting trust for the testator’s estate


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If there is a clear intention to create a trust but the half-secret trust is not valid, there will be a resulting trust for the testator’s estate.

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Question
Acceptance of the trust is necessary in order to bind the secret trustee. It can be express or inferred and silence may count as acquiescence:
Answer
Moss v Cooper (1861) 1 J & H 352


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Acceptance of the trust is necessary in order to bind the secret trustee. It can be express or inferred and silence may count as acquiescence: Moss v Cooper (1861) 1 J & H 352 per Wood V-C ‘Acquiescence either by words of consent or by silence’. What is vital is that the testator must reasonably believe that the trust has

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Question
Re Stead does not apply to half-secret trusts if the will permits communication to be made to only one of the intended half- secret trustees when such communication is effective if made before or at the time of executing the will:
Answer
Re Gardom [1914] 1 Ch 662 at 673


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dy>It does not apply to half-secret trusts if the will permits communication to be made to only one of the intended half- secret trustees when such communication is effective if made before or at the time of executing the will: Re Gardom [1914] 1 Ch 662 at 673.<body><html>

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Question
The deceased must have communicated details of the property subject to the trust:
Answer
Re Colin Cooper [1939] Ch 580


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The deceased must have communicated details of the property subject to the trust: Re Colin Cooper [1939] Ch 580. The testator left £5,000 to two people and communicated the terms of the trust to them. By a later codicil, he increased the sum to £10,000. The addition was not communicated to the

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Question
If the trust is to be enforced, its terms as well as its existence must be communicated inter vivos. If the trust is communicated but not its terms, the property is [...].
Answer
held on resulting trust for the deceased’s estate


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If the trust is to be enforced, its terms as well as its existence must be communicated inter vivos. If the trust is communicated but not its terms, the property is held on resulting trust for the deceased’s estate.

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Question
If the trust is to be enforced, [...] must be communicated inter vivos. If the trust is communicated but not its terms, the property is held on resulting trust for the deceased’s estate.
Answer
its terms as well as its existence


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If the trust is to be enforced, its terms as well as its existence must be communicated inter vivos. If the trust is communicated but not its terms, the property is held on resulting trust for the deceased’s estate.

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Question
It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died, provided the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis.
Answer
Re Keen [1937] Ch 236


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It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’.

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Question
It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided [...]; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’.
Answer
the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis


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munication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided <span>the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’. <span><body></htm

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Question
If a trust is to be enforced against an apparent absolute legatee, then there must be communication of the fact of the trust (i.e. its existence)
Answer
Wallgrave v Tebbs


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If a trust is to be enforced against an apparent absolute legatee, then there must be communication of the fact of the trust (i.e. its existence) Wallgrave v Tebbs (above). If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound.

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Question
If a trust is to be enforced against an apparent absolute legatee, then [...] Wallgrave v Tebbs (above). If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound.
Answer
there must be communication of the fact of the trust (i.e. its existence)


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If a trust is to be enforced against an apparent absolute legatee, then there must be communication of the fact of the trust (i.e. its existence) Wallgrave v Tebbs (above). If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound.

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Question
If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?
  1. General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
  2. Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).
Answer
Re Stead [1900] 1 Ch 237


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Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).

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Question
Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?
  1. General rule: [...];
  2. Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).
Answer
only those to whom communication is made are bound by the trust (since only their consciences are affected)


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Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after)

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Question
Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?
  1. General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
  2. Exception: if [...], all are bound if communication took place before the execution of the will (but not if it took place after).
Answer
the gift is to joint tenants, as opposed to tenants in common


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ates the trust to one of several trustees, but not to all of them, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if <span>the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after). <span><body><html>

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Question
Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?
  1. General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
  2. Exception: if the gift is to joint tenants, as opposed to tenants in common, [...].
Answer
all are bound if communication took place before the execution of the will (but not if it took place after)


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em, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, <span>all are bound if communication took place before the execution of the will (but not if it took place after). <span><body><html>

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Flashcard 1375692262668

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Question
What must be communicated for a secret trust? (3)
    Answer
    1. Existence of the trust
    2. Terms of the Trust
    3. Property subject to the trust


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    What must be communicated? Existence of the trust Terms of the Trust Property subject to the trust

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    Flashcard 1375694097676

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    #equity #law #secret-trust
    Question
    With a fully secret trust, communication must take place before death, whether before or after the signing of the will (if any)
    Answer
    Wallgrave v Tebbs (1855) 2 K & J 313.


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    With a fully secret trust, communication must take place before death, whether before or after the signing of the will (if any): Wallgrave v Tebbs (1855) 2 K & J 313.

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    Flashcard 1375695932684

    Tags
    #equity #law #secret-trust
    Question
    The testator’s statement that his wife ‘knows what she has to do’ with the house was held to be too vague to create an enforceable legal obligation on the wife to hold the house on a secret trust.
    Answer
    Kasperbauer v Griffith


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    In Kasperbauer v Griffith the testator’s statement that his wife ‘knows what she has to do’ with the house was held to be too vague to create an enforceable legal obligation on the wife to hold the house on a s

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    Flashcard 1375697767692

    Tags
    #equity #law #secret-trust
    Question
    The onus is on the person claiming that a trust exists. The standard of proof for establishing the trust is the normal civil standard, namely proof on a balance of probabilities
    Answer
    Re Snowden [1979] Ch 528


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    The onus is on the person claiming that a trust exists. The standard of proof for establishing the trust is the normal civil standard, namely proof on a balance of probabilities (Re Snowden [1979] Ch 528).

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    Flashcard 1375699602700

    Tags
    #equity #law #secret-trust
    Question
    According to [ case ] the requirements for the trust to be enforced are:
    1. An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property;
    2. Communication of the trust to the intended trustee; and
    3. Acceptance of the trust by the trustee.
    The testator or intestate then relies on that acceptance by making a will, leaving a will unrevoked or not making a will at all.
    Answer
    Kasperbauer v Griffith [2000] WTLR 333


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    According to Kasperbauer v Griffith [2000] WTLR 333 the requirements for the trust to be enforced are: An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property; Co

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    Flashcard 1375701437708

    Tags
    #equity #law #secret-trust
    Question
    According to Kasperbauer v Griffith [2000] WTLR 333 the requirements for the trust to be enforced are: (3)
    Answer
    1. An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property;
    2. Communication of the trust to the intended trustee; and
    3. Acceptance of the trust by the trustee.


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    According to Kasperbauer v Griffith [2000] WTLR 333 the requirements for the trust to be enforced are: An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property; Communication of the trust to the intended trustee; and Acc

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    Flashcard 1375704059148

    Tags
    #equity #law #secret-trust
    Question
    A father’s ambiguous statements about the claimant’s older brother ‘knowing his wishes’ and ‘giving what’s appropriate’ were held not to create a binding legal obligation.
    Answer
    Margulies v Margulies (1999-2000) 2 ITELR 641


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    Similarly, in Margulies v Margulies (1999-2000) 2 ITELR 641, a father’s ambiguous statements about the claimant’s older brother ‘knowing his wishes’ and ‘giving what’s appropriate’ were held not to create a binding legal obligation. A further

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    Flashcard 1375705894156

    Tags
    #equity #law #secret-trust
    Question
    By the [ statute ] ‘no will shall be valid unless:
    1. It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
    2. It appears that the testator intended by his signature to give effect to the will: and
    3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
    4. Each witness either:
      1. Attests and signs the will; or
      2. Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
    Answer
    Wills Act 1837, s 9


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    By the Wills Act 1837, s 9 ‘no will shall be valid unless: It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and It appears that the testator intende

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    Flashcard 1375707729164

    Tags
    #equity #law #secret-trust
    Question
    Sets out the requirements for a valid will
    Answer
    Wills Act 1837, s 9


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    By the Wills Act 1837, s 9 ‘no will shall be valid unless: It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and It appears that the testator intende

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    Flashcard 1375709826316

    Tags
    #equity #law #secret-trust
    Question
    Any gift/trust which is to take effect on death must normally comply with the formalities of the [ statute ]
    Answer
    Wills Act 1837, s 9


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    Any gift/trust which is to take effect on death must normally comply with the formalities of the Wills Act 1837, s 9

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    Flashcard 1375711661324

    Tags
    #equity #law #secret-trust
    Question
    Except where [...], to create a valid gift/trust to take effect on death, the Wills Act 1837, s 9 must be complied with.
    Answer
    a person dies intestate in reliance on their next of kin agreeing to hold what is inherited on trust for B


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    Except where a person dies intestate in reliance on their next of kin agreeing to hold what is inherited on trust for B, to create a valid gift/trust to take effect on death, the Wills Act 1837, s 9 must be complied with.

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    Flashcard 1375712709900

    Tags
    #equity #law #secret-trust
    Question
    [ case ], where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.
    Answer
    Re Gardner (No 2) [1923] 2 Ch 230


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    Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’

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    Flashcard 1375714544908

    Tags
    #equity #law #secret-trust
    Question
    Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose [...], as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.
    Answer
    as soon as the trusts were communicated and accepted


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    >Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed beca

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    Flashcard 1375715593484

    Tags
    #equity #law #secret-trust
    Question
    Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, [...]. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.
    Answer
    the beneficiary’s share did not lapse


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    t under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, <span>the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that

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    Flashcard 1375716642060

    Tags
    #cd #crime #law
    Question
    FACTS: The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business'. D took this as an instruction to set fire to the factory, which he did. HELD: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the CDA 1971, s 5(2)(a) defence.
    Answer
    R v Denton [1982] 1 All ER 65


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    R v Denton [1982] 1 All ER 65 FACTS: The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business'. D took th

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    Flashcard 1375718477068

    Tags
    #cd #crime #law
    Question
    There are four requirements for the s5(2)(b) defence:
    Answer
    (a) The defendant must act to protect property.
    (b) s5(2(b)(i) The accused must believe that the property was in immediate need of protection (subjective test).
    (c) s5(2)(b)(ii) The accused must believe that the means of protection adopted are reasonable.
    (d) The damage caused by the accused must be (objectively) capable of protecting the property.


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    There are four requirements for the s5(2)(b) defence. (a) The defendant must act to protect property. (b) s5(2(b)(i) The accused must believe that the property was in immediate need of protection (subjective test). (c) s5(2)(b)(ii

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    Flashcard 1375720312076

    Tags
    #cd #crime #law
    Question
    Information does not fall within the definition of 'property' contained in the CDA 1971, s 10(1).
    Answer
    R v Whitely (1991) 93 Cr App R 25


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    In R v Whitely (1991) 93 Cr App R 25, the court held that information does not fall within the definition of 'property' contained in the CDA 1971, s 10(1).

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    Flashcard 1375722147084

    Tags
    #cd #crime #law
    Question
    '[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.'
    Answer
    Morphitis v Salmon [1990] Crim LR 48


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    This approach was confirmed in Morphitis v Salmon [1990] Crim LR 48, where the court stated: '[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.'

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    Flashcard 1375723982092

    Tags
    #cd #crime #law
    Question
    Mud spread on the walls of a police cell may constitute 'damage' within the CDA 1971, even though it could be easily removed.
    Answer
    Roe v Kingerlee [1986] Crim LR 735


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    in Roe v Kingerlee [1986] Crim LR 735, that mud spread on the walls of a police cell may constitute 'damage' within the CDA 1971, even though it could be easily removed.

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    Flashcard 1375725817100

    Tags
    #cd #crime #law
    Question
    Damage need not be permanent
    Answer
    Hardman v Chief Constable of Avon


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    In Hardman v Chief Constable of Avon, the court held that damage need not be permanent

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    Flashcard 1375728438540

    Tags
    #cd #crime #law
    Question
    In [ case ], the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that:
    1. at the time of committing the actus reus, the accused was subjectively aware of a risk; and
    2. in the circumstances known to him, it was objectively unreasonable for the accused to take that risk.
    Answer
    R v G [2003] UKHL 50


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    In R v G [2003] UKHL 50, the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that:&#1

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    Flashcard 1375730273548

    Tags
    #cd #crime #law
    Question
    In R v G [2003] UKHL 50, the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that:
    Answer
    1. at the time of committing the actus reus, the accused was subjectively aware of a risk; and
    2. in the circumstances known to him, it was objectively unreasonable for the accused to take that risk.


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    In R v G [2003] UKHL 50, the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that: at the time of committing the actus reus, the accused was subjectively aware of a risk; and in the circumstances known to him, it was objectively unreasonable for the accused to take tha

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    Flashcard 1375732108556

    Tags
    #cd #crime #law
    Question
    Intention is to be given its ordinary meaning
    Answer
    R v Maloney [1985] 1 AC 905


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    Intention is to be given its ordinary meaning, R v Maloney [1985] 1 AC 905, and therefore requires consideration of whether, at the time he carried out the actus reus, it was his aim or purpose to destroy or damage the property belonging to another</s

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    Flashcard 1375733943564

    Tags
    #cd #crime #law
    Question
    If the property is mortgaged it will also belong to the bank or mortgage company by virtue of [...]
    Answer
    CDA 1971 s10(2)(c)


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    If the property is mortgaged it will also belong to the bank or mortgage company by virtue of s10(2)(c)

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    Flashcard 1375735778572

    Tags
    #cd #crime #law
    Question
    [...] Property shall be treated for the purposes of this Act as belonging to any person—
    (a) having the custody or control of it;
    (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
    (c) having a charge on it.
    Answer
    CDA 1971 s. 10(2)


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    S10 (2) Property shall be treated for the purposes of this Act as belonging to any person— (a) having the custody or control of it; (b) having in it any proprietary right or interest (

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    Flashcard 1375738400012

    Tags
    #cd #crime #law
    Question
    CDA 1971 s. 10(2) Property shall be treated for the purposes of this Act as belonging to any person— (3)
    Answer
    (a) having the custody or control of it;
    (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
    (c) having a charge on it.


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    CDA 1971 s. 10(2) Property shall be treated for the purposes of this Act as belonging to any person— (a) having the custody or control of it; (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an i

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    Flashcard 1375740235020

    Tags
    #cd #crime #law
    Question
    The mens rea for criminal damage extends to the whole of the actus reus.
    Answer
    R v Smith [1974] 1 ALL ER 632


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    It has been confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that he knew, or

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    Flashcard 1375742070028

    Tags
    #cd #crime #law
    Question
    It has been confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that [...]. Smith, who lived in rented accommodation with his brother, had installed electrical wiring to connect a stereo system. He had also, with his brother's help and the landlord's permission, put down floorboards, wall panels and roofing material. After two years, Smith decided to vacate the flat and asked permission for his brother to remain: the landlord declined. After this, Smith smashed the wall panels, floorboards and roofing material, doing so he said to gain access to the wiring that he had fitted, in order to remove it.
    Answer
    he knew, or was reckless as to whether, the property belonged to another


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    confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that <span>he knew, or was reckless as to whether, the property belonged to another. Smith, who lived in rented accommodation with his brother, had installed electrical wiring to connect a stereo system. He had also, with his brother's help and the landlord's permiss

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    Flashcard 1375743905036

    Tags
    #cd #crime #law
    Question
    The [ statute ] says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.
    Answer
    CDA 1971, s 5(3)


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    The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

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    Flashcard 1375745740044

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be [...].
    Answer
    honestly held


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    The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

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    Flashcard 1375746788620

    Tags
    #cd #crime #law
    Question
    The defence under CDA 1971 s 5(2)(a) applies even where the defendant was intoxicated
    Answer
    Jaggard v Dickinson [1980] Crim LR 717


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    In Jaggard v Dickinson [1980] Crim LR 717 (QBD, the court confirmed that the test was subjective. Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying. Applying the CDA

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    Flashcard 1375748623628

    Tags
    #cd #crime #law
    Question
    The [ statute ] operates where the defendant acts to protect his or another's property. The section relates only to the protection of property.
    Answer
    CDA 1971, s 5(2)(b)


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    The CDA 1971, s 5(2)(b) operates where the defendant acts to protect his or another's property. The section relates only to the protection of property.

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    Flashcard 1375750458636

    Tags
    #cd #crime #law
    Question
    For the defence under CDA 1971 s. 5(2)(b) to succeed the defendant must act to protect property from immediate damage
    Answer
    Johnson v DPP [1994] Crim LR 673


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    Johnson v DPP [1994] Crim LR 673 FACTS: Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the house. Johnson was charged with criminal damage and raised the CDA 1971, s 5(2)(b) de

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    Flashcard 1375752293644

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 5(2)(b) defence to a charge of criminal damage only applies where the act is to protect property.
    Answer
    R v Baker & Wilkins [1997] Crim LR 497


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    In R v Baker & Wilkins [1997] Crim LR 497, a mother could not raise the CDA 1971, s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her

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    Flashcard 1375754128652

    Tags
    #cd #crime #law
    Question
    The [ statute ] preserves the availability of the general defences to criminal offences, e.g. prevention of crime, self-defence, and duress/necessity.
    Answer
    CDA 1971, s 5(5)


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    The CDA 1971, s 5(5) preserves the availability of the general defences to criminal offences, e.g. prevention of crime, self-defence, and duress/necessity.

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    Flashcard 1375755963660

    Tags
    #cd #crime #law
    Question
    FACTS: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which did not work. He then called the fire brigade. HELD: The Court of Appeal, rejecting the defence under the CDA 1971, s 5(2)(b), introduced an objective element into the defence. The court held that it was not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damage.
    Answer
    R v Hunt [1977] Crim LR 740


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    R v Hunt [1977] Crim LR 740 FACTS: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which

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    Flashcard 1375757798668

    Tags
    #cd #crime #law
    Question
    The mens rea of aggravated criminal damage (CDA s. 1(2)) is: (2)
    Answer
    (a) intention or recklessness as to the damage or destruction of property; and
    (b) intention or recklessness as to the endangerment of life by the damage or destruction.


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    The mens rea of aggravated criminal damage (CDA s. 1(2)) is: (a) intention or recklessness as to the damage or destruction of property; and (b) intention or recklessness as to the endangerment of life by the damage or destruction.</spa

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    Flashcard 1375760420108

    Tags
    #cd #crime #law
    Question
    The [ statute ] provides:

    'Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.'

    Answer
    CDA 1971, s 1(3)


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    The CDA 1971, s 1(3) provides: 'Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.'

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    Flashcard 1375762255116

    Tags
    #cd #crime #law
    Question
    There must be a causal link between the damage to property and the danger to life for an aggravated CD claim to succeed.
    Answer
    R v Steer [1988] 1 AC 111 (HL)


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    R v Steer [1988] 1 AC 111 (HL) FACTS: The defendant had fired three shots through a window. HELD: This did not constitute the offence under the CDA 1971, s 1(2) because the lives had been endangered by the bullets

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    Flashcard 1375764090124

    Tags
    #cd #crime #law
    Question
    The [ statute ] provides:

    'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

    1. to destroy or damage any property belong to some other person; or
    2. to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'
    Answer
    CDA 1971, s 3


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    The CDA 1971, s 3 provides: 'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to dest

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    Flashcard 1375765925132

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 3 provides:

    'A person who has [...] intending without lawful excuse to use it or cause or permit another to use it—

    1. to destroy or damage any property belong to some other person; or
    2. to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'
    Answer
    anything in his custody or under his control


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    The CDA 1971, s 3 provides: 'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to destroy or damage any property belong to some other person; or to destroy or damage his ow

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    Flashcard 1375766973708

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 3 provides:

    'A person who has anything in his custody or under his control [...]

    1. to destroy or damage any property belong to some other person; or
    2. to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'
    Answer
    intending without lawful excuse to use it or cause or permit another to use it


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    The CDA 1971, s 3 provides: 'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to destroy or damage any property belong to some other person; or to destroy or damage his own or the user's property in a way which he knows is likely to endanger the lif

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    Flashcard 1375768022284

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 3 provides:

    'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

    1. to destroy or damage any property belong to some other person; or
    2. to destroy or damage his own or the user's property [...]; shall be guilty of an offence.'
    Answer
    in a way which he knows is likely to endanger the life of some other person


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    is custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to destroy or damage any property belong to some other person; or to destroy or damage his own or the user's property <span>in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.' <span><body><html>

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    Flashcard 1375769070860

    Tags
    #cd #crime #law
    Question
    The [ statute ] provides:

    'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—

    1. to destroy or damage property belonging to that other or a third person; or
    2. to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'
    Answer
    CDA 1971, s 2


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    The CDA 1971, s 2 provides: 'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage pro

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    Flashcard 1375770905868

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 2 provides:

    'A person who without lawful excuse [...], intending that that other would fear it would be carried out,—

    1. to destroy or damage property belonging to that other or a third person; or
    2. to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'
    Answer
    makes to another a threat


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    The CDA 1971, s 2 provides: 'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage property belonging to that other or a third person; or to destroy or damage his own pro

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    Flashcard 1375771954444

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 2 provides:

    'A person who without lawful excuse makes to another a threat, [...],—

    1. to destroy or damage property belonging to that other or a third person; or
    2. to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'
    Answer
    intending that that other would fear it would be carried out


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    The CDA 1971, s 2 provides: 'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage property belonging to that other or a third person; or to destroy or damage his own property in a way which he knows is likely to endanger the life o

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    Flashcard 1375773003020

    Tags
    #cd #crime #law
    Question
    The CDA 1971, s 2 provides:

    'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—

    1. to destroy or damage property belonging to that other or a third person; or
    2. to destroy or damage his own property [...]; shall be guilty of an offence.'
    Answer
    in a way which he knows is likely to endanger the life of that other or third person


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    who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage property belonging to that other or a third person; or to destroy or damage his own property <span>in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.' <span><body><html>

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    Flashcard 1375774051596

    Tags
    #crime #law #theft
    Question
    FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made excuses not to hand the money over and obtained permission to pay it into his own bank account. He then handed cheques drawn on his own account to the organisers but these were not met. At the same time, he was withdrawing money from the account for his own use. HELD: The Court of Appeal held:

    '[B]y virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.'

    Answer
    R v Wain [1995] 2 Cr App R 660


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    R v Wain [1995] 2 Cr App R 660 FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made exc

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    Flashcard 1375775886604

    Tags
    #law #tort #trespass
    Question
    An assault is [...].
    Answer
    an act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact


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    An assault is an act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact.

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    Flashcard 1375776935180

    Tags
    #law #tort #trespass
    Question
    A threat to harm in the future is unlikely to be an assault. In [...] the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an adequately protected vehicle and therefore the threats were not an assault.
    Answer
    Thomas v NUM [1986] Ch 20


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    A threat to harm in the future is unlikely to be an assault. In Thomas v NUM [1986] Ch 20 the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an adequately protected vehicle and

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    Flashcard 1375778508044

    Tags
    #law #tort #trespass
    Question
    A threat to harm in the future is unlikely to be an assault.
    Answer
    Thomas v NUM [1986] Ch 20


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    A threat to harm in the future is unlikely to be an assault. In Thomas v NUM [1986] Ch 20 the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an ade

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    Flashcard 1375780343052

    Tags
    #law #tort #trespass
    Question
    Liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.
    Answer
    Wilkinson v Downton (1897) 66 LJQB 493


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    It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus l

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    Flashcard 1375782178060

    Tags
    #law #tort #trespass
    Question
    It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant [...] and which does in fact achieve that result.
    Answer
    deliberately acts or makes a statement which is calculated to cause physical harm to the claimant


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    ) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant <span>deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.<span><body><html>

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    Flashcard 1375783226636

    Tags
    #law #tort #trespass
    Question
    It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which [...].
    Answer
    does in fact achieve that result


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    dent. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which <span>does in fact achieve that result.<span><body><html>

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    Flashcard 1375784275212

    Tags
    #law #tort #trespass
    Question
    One of the areas where consent may negative a battery is in the field of medical treatment
    Answer
    Airedale NHS Trust v Bland [1993] 1 All ER 821, 881


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    Areas where consent may negative a battery are in the field of medical treatment, Chatterton v Gerson [1981] l All ER 257, and sporting occasions. Lord Brown-Wilkinson reconfirmed this point in Airedale NHS Trust v Bland [1993] 1 All ER 821, 881: Any treatment given by a doctor to a patient which is invasive ... is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tor

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    Flashcard 1375786110220

    Tags
    #law #tort #trespass
    Question
    If actual bodily harm was suffered then it is immaterial that there was consent.
    Answer
    R v Brown [1992] 2 All ER 552


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    Whether it is possible to consent to a battery in areas outside medical treatment and lawful sport is open to question. The criminal case of R v Brown [1992] 2 All ER 552 held that if actual bodily harm was suffered then it is immaterial that there was consent.

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    Flashcard 1375787945228

    Tags
    #law #tort #trespass
    Question
    Self-defence can be pleaded by a defendant if they have used reasonable force in self- protection or to protect another person, or property. What is reasonable force is a question of fact in each case.
    Answer
    Lane v Holloway [1968] 1 QB 379


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    html>Self-defence can be pleaded by a defendant if they have used reasonable force in self- protection or to protect another person, or property. What is reasonable force is a question of fact in each case. See Lane v Holloway [1968] 1 QB 379. <html>

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    Flashcard 1375789780236

    Tags
    #law #tort #trespass
    Question
    In order for there to be imprisonment it is necessary to show that the claimant's liberty has been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only.
    Answer
    Bird v Jones [1845] 7 QB 742


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    been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only. In <span>Bird v Jones [1845] 7 QB 742 the claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will

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    Flashcard 1375791615244

    Tags
    #law #tort #trespass
    Question
    The claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will be imprisoned unless there is a reasonable means by which they can exit or gain their freedom. They are not expected to take dangerous or unusual methods of exit, e.g. jumping from a fifth storey window.
    Answer
    Bird v Jones [1845] 7 QB 742


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    been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only. In <span>Bird v Jones [1845] 7 QB 742 the claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will

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    Flashcard 1375793450252

    Tags
    #law #tort #trespass
    Question
    The act must be a direct act by the defendant.
    Answer
    Sayers v Harlow Urban District Council [1958] WLR 623


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    The act must be a direct act by the defendant. See Sayers v Harlow Urban District Council [1958] WLR 623.

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    Flashcard 1375795285260

    Tags
    #law #tort #trespass
    Question
    There is also no need for any force; words can be enough such as ‘stay here, otherwise I’ll kill you.’
    Answer
    Davidson v Chief Constable of North Wales [1994] 2 All ER 597


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    There is also no need for any force; words can be enough such as ‘stay here, otherwise I’ll kill you.’ See Davidson v Chief Constable of North Wales [1994] 2 All ER 597.

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    Flashcard 1375797120268

    Tags
    #law #tort #trespass
    Question
    The defendant lunged at the claimant in a meeting and was forcibly restrained by those close to the claimant. In that case there was an assault since the threat was very much an immediate and pressing threat which might well have been carried out but for the timely intervention of others.
    Answer
    Stephens v Myers (1830) 4 C&P 349


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    Contrast this with the case of Stephens v Myers (1830) 4 C&P 349 where the defendant lunged at the claimant in a meeting and was forcibly restrained by those close to the claimant. In that case there was an assault since the threat was very much an

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    Flashcard 1375800528140

    Tags
    #law #tort #trespass
    Question
    There must be a direct act for there to be trespass to the person.
    Answer
    Reynolds v Clarke (1725) 93 ER 747


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    In addition, there must be a direct act for there to be trespass to the person. This was explained in Reynolds v Clarke (1725) 93 ER 747 in the following way: If a man throws a log on the highway, and in that act it hits me I may maintain a trespass because it is

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    Flashcard 1375802363148

    Tags
    #law #tort #trespass
    Question
    The least touching of another in anger is battery.
    Answer
    Cole v Turner (1704) 6 Mod 149


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    In Cole v Turner (1704) 6 Mod 149 it was stressed that the least touching of another in anger is battery. In R v Cotesworth (1704) 6 Mod 172 spitting in a doctor's face was held to be a battery.</h

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    Flashcard 1375804198156

    Tags
    #law #tort #trespass
    Question
    Spitting in a doctor's face was held to be a battery.
    Answer
    R v Cotesworth (1704) 6 Mod 172


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    In Cole v Turner (1704) 6 Mod 149 it was stressed that the least touching of another in anger is battery. In R v Cotesworth (1704) 6 Mod 172 spitting in a doctor's face was held to be a battery.

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    Flashcard 1375806033164

    Tags
    #law #tort #trespass
    Question
    Court of Appeal described battery as an intentional touching accompanied by hostility.
    Answer
    Wilson v Pringle [1986] 2 All ER 440


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    In Wilson v Pringle [1986] 2 All ER 440 the Court of Appeal described battery as an intentional touching accompanied by hostility. In that case two schoolboys had been playing in the playground and one had been hurt. It was

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    Flashcard 1375807868172

    Tags
    #law #tort #trespass
    Question
    False imprisonment is [...]. It is easiest to examine this tort by first establishing the element of imprisonment or restriction of liberty and then examining whether this is false, i.e. without lawful justification.
    Answer
    an act of the defendant that directly and intentionally causes the complete restriction of the claimant's liberty without lawful justification


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    False imprisonment is an act of the defendant that directly and intentionally causes the complete restriction of the claimant's liberty without lawful justification. It is easiest to examine this tort by first establishing the element of imprisonment or restriction of liberty and then examining whether this is false, i.e. without lawful justifica

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    Flashcard 1375808916748

    Tags
    #law #tort #trespass
    Question
    It is not necessary for there to be mental awareness by the claimant of their plight.
    Answer
    Meering v Grahame-White Aviation (1919) 122 LT 44


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    It is not necessary for there to be mental awareness by the claimant of their plight. In Meering v Grahame-White Aviation (1919) 122 LT 44 the claimant was asked to go to his boss's office which he did. He waited there quite happily without realising that his colleagues

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    Flashcard 1375810751756

    Tags
    #law #tort #trespass
    Question
    The confinement must be demonstrated to be without lawful justification. There may be justification if the imprisonment was because the claimant failed to comply with a contractual condition.
    Answer
    Robinson v Balmain New Ferry [1910] AC 295


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    The confinement must be demonstrated to be without lawful justification. There may be justification if the imprisonment was because the claimant failed to comply with a contractual condition.

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    Flashcard 1375812586764

    Tags
    #law #tort #trespass
    Question
    Where there is a wrongful continuation of an original lawful imprisonment, an action may be brought for false imprisonment
    Answer
    Roberts v Chief Constable of Cheshire [1999] 2 All ER 326


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    Note: where there is a wrongful continuation of an original lawful imprisonment, an action may be brought for false imprisonment (see Roberts v Chief Constable of Cheshire [1999] 2 All ER 326).

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    Flashcard 1375814421772

    Tags
    #law #tort #trespass
    Question
    Similarly, when a prisoner has been detained on the basis of an unlawful policy, this will constitute false imprisonment even if the prisoner could and would have been detained on the basis of an alternative lawful policy
    Answer
    R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12


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    Similarly, when a prisoner has been detained on the basis of an unlawful policy, this will constitute false imprisonment even if the prisoner could and would have been detained on the basis of an alternative lawful policy: R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12. Note that damages will be nominal since no loss or damage has been suffered in these circ

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    Flashcard 1375816256780

    Tags
    #law #tort #trespass
    Question
    Silence, which can cause psychiatric damage, may also amount to assault
    Answer
    R v Ireland [1997] 3 WLR 534


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    Silence, which can cause psychiatric damage, may also amount to assault (See R v Ireland [1997] 3 WLR 534).

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    Flashcard 1375818091788

    Tags
    #law #tort #trespass
    Question
    Battery may be defined as [...].
    Answer
    the direct and intentional application of force by the defendant to the claimant without lawful justification


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    Battery may be defined as the direct and intentional application of force by the defendant to the claimant without lawful justification.

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    Flashcard 1375819664652

    Tags
    #law #tort #trespass
    Question
    Any trespass to the person must be committed intentionally.
    Answer
    Letang v Cooper [1965] 1 QB 232


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    13; [T]respass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was caused unintentionally and without fault on the defendant's part. The later case of <span>Letang v Cooper [1965] 1 QB 232, followed this approach and restricted trespass to intentional acts.<span><body><html>

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    Flashcard 1375821499660

    Tags
    #law #tort #trespass
    Question
    Again in [ case ] (see paragraph 2.4.4) a miner refused to continue working his nine-hour shift and demanded to be brought to the surface. The defendants refused and there was no false imprisonment. "…it is not false imprisonment to hold a man to conditions he accepted when he goes down the mine."
    Answer
    Herd v Weardale Steel


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    Again in Herd v Weardale Steel (see paragraph 2.4.4) a miner refused to continue working his nine-hour shift and demanded to be brought to the surface. The defendants refused and there was no false imprisonment. &quot

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    Flashcard 1375823858956

    Tags
    #law #tort #trespass
    Question
    Words alone might suffice for an assault
    Answer
    R v Wilson [1955] 1 All ER 744


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    There has been some dispute as to whether words can amount to an assault. See R v Wilson [1955] 1 All ER 744 where it was argued that words alone might suffice for an assault, the logical argument being that if the essence of an assault is creating the apprehension of battery, then threatenin

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    Flashcard 1375825693964

    Tags
    #law #tort #trespass
    Question
    Ex turpi causa has been argued in cases involving fights, but has usually failed due to disproportionate force being used by one party
    Answer
    Lane v Holloway


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    Ex turpi causa has been argued in cases involving fights, but has usually failed due to disproportionate force being used by one party, e.g. Lane v Holloway (see paragraph 2.4.1). In Lane v Holloway [1968] 1 QB 379 an argument occurred between the plaintiff (aged 64) and the defendant (aged 23) outside the plaintiff’s house. The defendant’

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    Flashcard 1375827528972

    Tags
    #law #tort #trespass
    Question
    The defence of contributory negligence is not available in the torts of assault and battery as a matter of law.
    Answer
    Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA 329


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    lt and battery, although its application was uncertain, particularly as there are authorities which deny that provocation can be a defence, see Barnes v Nayer, The Times, 19 December 1986. The situation has now been clarified in the case of <span>Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA 329. The Court of Appeal in this case made it clear that the defence of contributory negligence is not available in the torts of assault and battery as a matter of law. <span></bo

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    Flashcard 1375829363980

    Tags
    #equity #law #tracing
    Question
    Later payments into the account would only be presumed to be repayments to the trust where the trustee shows such an intention and he gave the example of the trustee repaying money into a separate account opened for the trust.
    Answer
    Roscoe v Winder [1913] 1 Ch 62


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    In Roscoe v Winder [1913] 1 Ch 62, the plaintiffs sold their business to Mr Wigham and it was agreed that he should collect in certain debts on their behalf. He did this and paid £450 into his account. He then withdre

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    Flashcard 1375831198988

    Tags
    #equity #law #tracing
    Question
    The plaintiffs sold their business to Mr Wigham and it was agreed that he should collect in certain debts on their behalf. He did this and paid £450 into his account. He then withdrew money from the account leaving £26. Later, he died leaving £360 in the account. The court held that the plaintiffs’ proprietary claim over the account was limited to the lowest intermediate balance of £26. Sargant J said that later payments into the account would only be presumed to be repayments to the trust where the trustee shows such an intention and he gave the example of the trustee repaying money into a separate account opened for the trust.
    Answer
    Roscoe v Winder [1913] 1 Ch 62


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    In Roscoe v Winder [1913] 1 Ch 62, the plaintiffs sold their business to Mr Wigham and it was agreed that he should collect in certain debts on their behalf. He did this and paid £450 into his account. He then withdre

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    Flashcard 1375833033996

    Tags
    #equity #law #tracing
    Question
    Following the principle in Roscoe v Winder, if the account is exhausted during the intermediate period, the beneficiaries cannot trace at all.
    Answer
    Bishopsgate Investment Management Ltd v Homan [1995] Ch 211


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    If the account is exhausted during the intermediate period, the beneficiaries cannot trace at all. This was the conclusion of the Court of Appeal in Bishopsgate Investment Management Ltd v Homan [1995] Ch 211, which affirmed and applied Roscoe v Winder.

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    Flashcard 1375836179724

    Tags
    #equity #law #tracing
    Question
    When the mixed fund is a deposit (savings) account, the general rule is that the two funds share the mixture in the account rateably:
    Answer
    Re Diplock’s Estate


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    Deposit accounts The general rule is that the two funds share the mixture in the account rateably: Re Diplock’s Estate, applying Sinclair v Brougham [1914] AC 348. Payments out of the account will also be shared rateably. For example, if trust A’s contribution to the mixed fund w

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    Flashcard 1375841422604

    Tags
    #equity #law #tracing
    Question
    Therefore it can be said that the FIFO rule should not be applied if: (3)
    Answer
    (i) It was contrary to the express or implied intentions of the claimants;
    (ii) It was impractical; or
    (iii) It would cause injustice.


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    Therefore it can be said that the FIFO rule should not be applied if: (i) It was contrary to the express or implied intentions of the claimants; (ii) It was impractical; or (iii) It would cause injustice.

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    Flashcard 1375844044044

    Tags
    #equity #law #strangers
    Question
    If the recipient dissipates the property (or its proceeds) in circumstances where they lack the requisite knowledge, their proprietary liability to return the property (or its proceeds) thereby ceases. Moreover, they cannot be made personally liable for those innocent actions.
    Answer
    Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA


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    If the recipient dissipates the property (or its proceeds) in circumstances where they lack the requisite knowledge, their proprietary liability to return the property (or its proceeds) thereby ceases: Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195 at [76],[84]. Moreover, they cannot be made personally liable for those innocent actions.

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    Flashcard 1375845879052

    Tags
    #equity #law #strangers
    Question
    Knowledge, in this context, was divided into five types by Peter Gibson J in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325, as follows: (5)
    Answer
    1. Actual knowledge;
    2. Wilfully shutting one’s eyes to the obvious;
    3. Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;
    4. Knowledge of circumstances which would indicate the facts to an honest and reasonable man (but not a morally obtuse man); and
    5. Knowledge of circumstances which would put an honest and reasonable man on inquiry.


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    Knowledge, in this context, was divided into five types by Peter Gibson J in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325, as follows: Actual knowledge; Wilfully shutting one’s eyes to the obvious; Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; Knowledge of circumstanc

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    Flashcard 1375847714060

    Tags
    #equity #law #strangers
    Question
    Knowledge, in this context, was divided into five types by Peter Gibson J in [ case ], as follows:
    1. Actual knowledge;
    2. Wilfully shutting one’s eyes to the obvious;
    3. Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;
    4. Knowledge of circumstances which would indicate the facts to an honest and reasonable man (but not a morally obtuse man); and
    5. Knowledge of circumstances which would put an honest and reasonable man on inquiry.
    Answer
    Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325


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    Knowledge, in this context, was divided into five types by Peter Gibson J in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325, as follows: Actual knowledge; Wilfully shutting one’s eyes to the obvious; Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; Know

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    Flashcard 1375849549068

    Tags
    #equity #law #strangers
    Question
    According to the Baden case and [ case ], a person with knowledge in categories (ii) and (iii) ‘will be taken to have actual knowledge, while a person in categories (iv) or (v) has constructive notice only’
    Answer
    Agip (Africa) Ltd v Jackson [1990] Ch 265


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    According to the Baden case and Agip (Africa) Ltd v Jackson [1990] Ch 265, a person with knowledge in categories (ii) and (iii) ‘will be taken to have actual knowledge, while a person in categories (iv) or (v) has constructive notice only’</bo

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    Flashcard 1375854005516

    Tags
    #equity #formalities #law
    Question
    Under the [ statute ] ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’
    Answer
    Law of Property Act 1925, s 53(1)(b)


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    Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will

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    Flashcard 1375855840524

    Tags
    #equity #formalities #law
    Question
    Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be [...].’
    Answer
    manifested and proved by some writing signed by some person who is able to declare such trust or by his will


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    Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’

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    Flashcard 1375856889100

    Tags
    #equity #formalities #law
    Question
    Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting [...] must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’
    Answer
    any land or any interest therein


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    Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’

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    Flashcard 1375860559116

    Tags
    #equity #formalities #law
    Question
    Section [...] applies to dispositions of subsisting equitable interests in land and pure personalty.
    Answer
    53(1)(c) LPA 1925


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    Section 53(1)(c) applies to dispositions of subsisting equitable interests in land and pure personalty.

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    Flashcard 1375861607692

    Tags
    #equity #formalities #law
    Question
    Section 53(1)(c) LPA 1925 applies to [...].
    Answer
    dispositions of subsisting equitable interests in land and pure personalty


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    Section 53(1)(c) applies to dispositions of subsisting equitable interests in land and pure personalty.

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    Flashcard 1375864229132

    Tags
    #equity #formalities #law
    Question
    Unlike s 53(1)(b), s 53(1)(c) requires [...]. The effect of non-compliance is that the purported disposition is void.
    Answer
    the disposition to be in writing (not merely evidenced in writing)


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    Unlike s 53(1)(b), s 53(1)(c) requires the disposition to be in writing (not merely evidenced in writing). The effect of non-compliance is that the purported disposition is void.

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    Flashcard 1375865539852

    Tags
    #equity #formalities #law
    Question
    If the sub-trust is a ‘bare’ trust, where B has no active duties, B would effectively ‘drop out’ of the picture and the original trustee would hold on trust directly for X
    Answer
    Grainge v Wilberforce (1889) 5 TLR 436 and Re Lashmar [1891] 1 Ch 258


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    reating a sub-trust but the position on the application of s 53(1)(c) is uncertain. Section 53(1)(c) does not apply to the creation of new trusts (the relevant provision is s53(1)(b), which applies only if the trust relates to land); BUT, <span>if the sub-trust is a ‘bare’ trust, where B has no active duties, B would effectively ‘drop out’ of the picture and the original trustee would hold on trust directly for X – Grainge v Wilberforce (1889) 5 TLR 436 and Re Lashmar [1891] 1 Ch 258.<span><body><html>

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    Flashcard 1375868161292

    Tags
    #certainties #equity #law
    Question
    The words in each document are interpreted in their context, rather than according to previous cases – so the same words may not have the same effect.
    Answer
    Re Hamilton [1895] 2 Ch 370


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    The words in each document are interpreted in their context, rather than according to previous cases – so the same words may not have the same effect. In Re Hamilton [1895] 2 Ch 370, Lindley LJ said: You must take the will which you have to construe and see what it means, and if you come to the conclusion that no trust was intended, you say so, althoug

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    Flashcard 1375870258444

    Tags
    #certainties #equity #law
    Question
    In [ case ] the county court judge found an intention to create a trust where a man had told his cohabitant that the money in his bank account was as much hers as his and ordered half the money to be paid to her after his death, rather than pass to his wife. The Court of Appeal upheld this, Bridge LJ saying that the question was whether in the circumstances, Mr Constance had done something which was equivalent to declaring himself a trustee of the moneys in the account for himself and Mrs Paul in equal shares. Scarman LJ said that this was a borderline case because one could not pinpoint a specific moment of declaration but in all the circumstances the discussions on numerous occasions between Mr Constance and Mrs Paul constituted an express declaration of trust.
    Answer
    Paul v Constance [1977] 1 WLR 527


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    In Paul v Constance [1977] 1 WLR 527 the county court judge found an intention to create a trust where a man had told his cohabitant that the money in his bank account was as much hers as his and ordered half the money t

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    Flashcard 1375872355596

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    #certainties #equity #law
    Question
    A mail-order company fearful that it might go into liquidation may pay customers’ moneys into a separate bank account opened for the purpose of protecting them from merely being debtors of the company if not receiving their ordered goods. This will amount to a trust of the moneys for the customers. Of course, a customer on sending his cheque to such a company to buy goods could himself by covering letter require the company to hold the cheque money (as soon as cleared) on trust for himself.
    Answer
    Re Kayford [1975] 1 All ER 604


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    Re Kayford [1975] 1 All ER 604 A mail-order company fearful that it might go into liquidation may pay customers’ moneys into a separate bank account opened for the purpose of protecting them from merely being debtor

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    Flashcard 1375874714892

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    #certainties #equity #law
    Question
    A building contract provided that part of the contract price would be retained and held by the employer as trustee for the builder. The employer became insolvent. The builder claimed the retention money in priority to other creditors. It was held that there was no trust because no retention fund had been set up, so no identifiable assets had been impressed with a trust.
    Answer
    Mac-Jordan Construction Ltd v Brookmount Erostin Ltd [1992] BCLC 350 (CA)


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    Mac-Jordan Construction Ltd v Brookmount Erostin Ltd [1992] BCLC 350 (CA). A building contract provided that part of the contract price would be retained and held by the employer as trustee for the builder. The employer became insolvent. The builder claime

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    Flashcard 1375876812044

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    #certainties #equity #law
    Question
    Purchasers of bullion, who had paid for it but had not taken delivery, claimed rights to it on the insolvency of the company. Their claims were rejected, apart from a group whose bullion had been segregated. There was no trust for the others as there was no identifiable property on which any trust could attach. No particular bullion had been segregated for them.
    Answer
    Re Goldcorp Exchange Ltd [1995] AC 74


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    Re Goldcorp Exchange Ltd [1995] AC 74 Purchasers of bullion, who had paid for it but had not taken delivery, claimed rights to it on the insolvency of the company. Their claims were rejected, apart from a group whose bulli

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    Flashcard 1375879695628

    Tags
    #constitution #equity #law
    Question
    Where trust property is vested in the trustees, the trust is said to be ‘completely constituted’. It is then [...] (unless the trust specifically authorises revocation – which is rare). The beneficiaries have enforceable rights even though they may have given no consideration for the trust.
    Answer
    binding on the settlor, who cannot change their mind and revoke the trust


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    Where trust property is vested in the trustees, the trust is said to be ‘completely constituted’. It is then binding on the settlor, who cannot change their mind and revoke the trust (unless the trust specifically authorises revocation – which is rare). The beneficiaries have enforceable rights even though they may have given no consideration for the trust.<

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    Flashcard 1375881006348

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    #constitution #equity #law
    Question
    A deed is defined in the [ statute ] It must be:
    1. Written;
    2. Signed;
    3. Witnessed by at least one independent witness;
    4. Describe itself as a deed; and
    5. Be delivered.
    Answer
    Property (Miscellaneous Provisions) Act 1989, s 1.


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    A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be: Written; Signed; Witnessed by at least one independent witness; Describe itself as a deed; and Be delivered.

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    Flashcard 1375883627788

    Tags
    #constitution #equity #law
    Question
    A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be: (5)
    Answer
    1. Written;
    2. Signed;
    3. Witnessed by at least one independent witness;
    4. Describe itself as a deed; and
    5. Be delivered.


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    A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be: Written; Signed; Witnessed by at least one independent witness; Describe itself as a deed; and Be delivered.

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    Flashcard 1375886511372

    Tags
    #constitution #equity #law
    Question
    Equitable Interests These are transferred by signed writing ([ statute ]).
    Answer
    LPA 1925, s 53(1)(c)


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    Equitable Interests These are transferred by signed writing (LPA 1925, s 53(1)(c)).

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    Flashcard 1375888346380

    Tags
    #constitution #equity #law
    Question
    Where a donor intends to make a gift during their lifetime but fails to vest the legal estate in the donee, the gift may still be perfected if legal title vests in the donee because they become personal representative to the donor (now deceased), provided the donor had a continuing intention to make the gift up until death.
    Answer
    Strong v Bird (1874) LR 18 Eq 315


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    estate in the donee, the gift may still be perfected if legal title vests in the donee because they become personal representative to the donor (now deceased), provided the donor had a continuing intention to make the gift up until death. In <span>Strong v Bird (1874) LR 18 Eq 315, Bird borrowed £1,100 from his stepmother who was living with him, paying £212 rent per quarter. The loan was to be repaid, over 11 quarters, by the stepmother deducting £100 per quarte

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