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CILEx Level 6 Unit 5 Equity and Trusts - £540

This is a course set at the equivalent to honours-degree level and will give you an in-depth knowledge of the law of equity and trusts.

Who is the course for?

The course is for:

• Associate Members of CILEx using this course as one of their three Level 6 law units to achieve Graduate Membership of CILEx
• non-qualified probate practitioners who wish to gain knowledge of trusts to complement CILEx Level 6 Unit 14 Law of Wills and Succession and CILEx Level 6 Unit 21 Probate Practice courses.
• any Graduate Member of CILEx or Chartered Legal Executive wishing to fulfil the Solicitors Regulation Authority's academic stage of training.

What qualification will I get?

Success in the course will lead to the award of a CILEx Level 6 Single Subject Certificate in Equity and Trusts which is a standalone qualification but can also contribute to the CILEx Level 6 Professional Higher Diploma in Law and Practice.

What will I learn?

The course delivers the CILEx syllabus for this unit. Please click on the link to see the syllabus content expressed in terms of broad learning outcomes as well as the detailed knowledge, understanding and skills that are delivered by the course.  ITC publishes a course manual every year to deliver the CILEx syllabus and the table of contents (2011 edition) is reproduced below. You can also view sample pages from the course manual.

Chapter 1: An Introduction to Equity and Trusts
1.1 Introduction
1.2 Historical development of equity (in outline)
1.2.1 The medieval origins of equity
1.2.2 Development of a more formal system of rules
1.2.3 The fusion of law and equity
1.3 The maxims of equity
1.4 A brief introduction to equitable remedies
1.5 A brief introduction to the trust
1.5.1 The historical origins of the trust
1.5.2 Some modern uses of the trust
1.6 The nature of an equitable right
1.7 The relationship between equity and the common law
1.8 Enforceability of an equitable interest
1.8.1 Bona fide purchaser for value without notice
1.8.2 Registration provisions and their effect on the doctrine of notice
1.8.3 Overreaching provisions
1.9 The creativity of equity
Chapter 2: Equitable Remedies: Specific Performance
2.1 Introduction
2.2 Equitable remedies: general nature
2.2.1 Remedy available only if remedy at law is inadequate
2.2.2 Equitable remedies are discretionary
2.2.3 “Equity will do nothing in vain”
2.3 Specific performance: general nature
2.3.1 Equity acts in personam
2.3.2 The remedy is discretionary
2.3.3 The remedy at law must be inadequate
2.3.4 Can you change your mind?
2.4 Situations where specific performance will not be ordered
2.4.1 Structure of the contract
2.4.1.1 Contracts made for no consideration
2.4.1.2 Contracts lacking mutuality
2.4.1.3 Contract for sale of land not complying with the Law of
Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989)
2.4.2 Contracts requiring constant supervision
2.4.2.1 Contracts to build or repair
2.4.2.2 Contracts for personal services
2.4.2.3 Current status of the general rule against enforcing contracts
requiring constant supervision
2.4.3 Subject-matter not appropriate for a decree of specific
performance
2.4.3.1 Contracts for transient interests
2.4.3.2 Other types of contract where specific performance will not be granted
2.5 Defences to a specific performance action
2.5.1 Issues with the contract itself
2.5.1.1 Incomplete contract
2.5.1.2 Uncertainty in the contract
2.5.1.3 Absence of writing
2.5.1.4 Illegality
2.5.2 Conduct or situation of claimant or defendant
2.5.2.1 Lack of fairness/conduct of claimant
2.5.2.2 Hardship
2.5.2.3 Delay (laches)
2.5.2.4 Vendor’s defective title
2.5.2.5 Misrepresentation
2.5.2.6 Mistake
2.5.2.7 Misdescription
2.6 Damages in lieu of, or in addition to, specific performance
2.6.1 When equitable damages can be awarded
2.6.2 The measure of damages
2.7 Specific performance and third parties
2.7.1 Assignment of an agreement for a lease
2.7.2 Privity of contract
Chapter 3: Injunctions
3.1 Introduction
3.2 Jurisdiction
3.3 Types of injunctions
3.4 Protection of rights
3.4.1 Rights that will be protected
3.4.2 Assertion of rights
3.4.3 Interests of the general public
3.5 Final injunctions
3.5.1 Factors influencing the granting of prohibitory injunctions
3.5.2 Final injunctions: factors influencing the issue of mandatory injunctions
3.5.3 Suspension of injunctions
3.6 Interim injunctions
3.6.1 Procedural issues
3.6.2 The right to discharge an interim injunction
3.6.3 The guidelines for when an interim injunction will be granted
3.6.3.1 Frivolous and vexatious claims
3.6.3.2 Inadequacy of damages
3.6.3.3 Other considerations in assessing the balance of convenience
3.6.3.4 American Cyanamid and “special factors”
3.6.3.5 Situations in which the principles in American Cyanamid do
not apply or apply in modified form
3.6.3.6 Mandatory
3.6.3.7 Conditions and undertakings
3.6.3.8 The Human Rights Act 1998 (HRA 1998)
3.7 Defences to injunctions (final and interim)
3.7.1 Delay (laches)
3.7.2 Acquiescence
3.7.3 Hardship
3.7.4 “Clean hands”
3.8 Damages – jurisdiction under Lord Cairns’ Act
3.8.1 Principles governing the award of damages
3.8.2 Measure of damages
3.9 The grant of injunctions to restrain a breach of contract
3.9.1 Breach of purely negative terms
3.9.2 Part positive and part negative terms
3.9.3 No express negative stipulation
3.9.4 Contracts of employment
3.10 The grant of injunctions in other specific situations
3.10.1 Breach of an equitable trust obligation
3.10.2 Restraint of the commission of a tort
3.10.3 Restraint of a breach of confidence
3.10.4 Restraint of acts which are illegal or detrimental to the public
3.10.5 Family matters
3.10.6 Trade unions, clubs and colleges
3.10.7 Court and legislative proceedings
3.11 Search orders
3.11.1 Conditions for the grant of a search order
3.11.2 The execution of a search order
3.12 Freezing injunctions
3.12.1 The jurisdiction to make freezing injunctions
3.12.2 The stage in proceedings when a freezing injunction may be
ordered
3.12.3 Principles applicable to the making of freezing injunctions
3.12.4 The subject-matter of freezing injunctions
3.12.5 The effect of a freezing injunction
3.12.6 Breach of a freezing injunction
3.12.7 Worldwide freezing injunctions
3.12.8 Freezing injunction in support of foreign proceedings
3.13 Other equitable remedies
3.13.1 Specific performance
3.13.2 Rescission
3.13.3 Rectification
3.13.4 Account
3.13.5 Receiver
Chapter 4: Nature and Classification of Trusts
4.1 Introduction
4.2 The nature of the beneficiary’s interest under the trust
4.3 Trusts distinguished from other relationships
4.3.1 Bailment
4.3.2 Agency
4.3.3 Contract
4.3.4 Debt
4.3.5 Administration
4.4 Trusts and powers
4.4.1 What is a “power”?
4.4.2 Trusts and powers: general distinction
4.4.3 Distinguishing between discretionary trusts and special
powers of appointment
4.4.4 Is the distinction between discretionary trusts and mere
powers still important?
4.4.5 Exercise of powers of appointment
4.5 Trust classification
4.5.1 Fixed, discretionary and protective trusts
4.5.1.1 Fixed trusts
4.5.1.2 Discretionary trusts
4.5.1.3 Protective trusts
4.5.2 Further sub-classification of express trusts
Chapter 5: Requirements for the Formation of a Valid Trust (1): the Three
Certainties
5.1 Introduction
5.2 Capacity
5.3 Certainty and the law of trusts
5.4 Certainty of words/intention
5.4.1 Precatory words
5.4.2 Interpretation of documents
5.4.3 Finding intention to create a trust from words or conduct
5.5 Certainty of subject-matter
5.5.1 Certainty of subject-matter as a whole
5.5.2 Certainty of beneficial interest
5.5.3 Trusts of an expectancy
5.6 Certainty of objects
5.6.1 Fixed trusts
5.6.2 Discretionary trusts
5.6.2.1 The new test for powers of appointment
5.6.2.2 Extension of the new test to discretionary trusts
5.6.2.3 Administrative unworkability
5.6.3 Application of the “any given individual” test
5.7 The effect of uncertainty
5.8 Other limitations and the certainty of objects issue
5.8.1 Bare power
5.8.2 Fiduciary power
5.8.3 Individual gifts subject to a condition precedent
5.8.4 Individual gifts on condition subsequent
5.9 Summary of approach to certainty of objects problem
5.10 Suspensory trust concept
5.11 The need for human beneficiaries
5.12 Other requirements for validity
Chapter 6:Requirements for the Formation of a Valid Trust (2): Formalities And Constitution of Trusts
6.1 Introduction
6.2 Formalities for the declaration of trust regarding land
6.3 Dispositions of equitable interests
6.3.1 s53(1)(c) and tax law
6.3.2 Disposing of a subsisting equitable interest
6.3.2.1 Assignment of beneficial interest to another
6.3.2.2 Instruction to trustees to hold equitable interest for another 
6.3.2.3 Beneficiary makes new declaration of trust
6.3.2.4 Instruction to trustees to dispose of both legal and equitable
ownership – not a disposition
6.3.2.5 Bringing a resulting trust to an end – not a disposition
6.3.2.6 Equitable interest still held by fiduciary
6.3.2.7 Variation of trusts
6.3.3 The complicating effect of s53(2) Law of Property Act 1925
6.3.3.1 The basic argument
6.3.3.2 Later applications of the argument from Oughtred
6.4 Completely and incompletely constituted trusts
6.5 Vesting trust property in trustees
6.5.1 Modes of transfer
6.5.2 Application of the rule that the settlor must do everything
within their power to transfer the property
6.5.3 Things that are not within the power of the settlor
6.6 Declaration of trust by the settlor
6.7 Situations where a volunteer can claim the benefit of an
imperfect gift/incompletely constituted trust
6.7.1 The rule in Strong v Bird [1874]
6.7.1.1 Application of Strong v Bird to gifts
6.7.1.2 Application of Strong v Bird to complete constitution of trusts
6.7.2 A donatio mortis causa (DMC)
6.7.2.1 Contemplation of death
6.7.2.2 Conditional upon death
6.7.2.3 Delivery of property (parting with dominion)
6.7.2.4 Property capable of being the subject-matter of a DMC
6.7.3 Proprietary estoppel
Chapter 7: Secret Trusts
7.1 Introduction
7.2 The problem of enforcement
7.3 Reasons for creating secret trusts
7.4 The terminology of secret trusts
7.5 The theoretical basis for the enforcement of secret trusts
7.5.1 “Equity will not permit a statute to be used as an instrument
of fraud”
7.5.2 The trust arises “dehors” the will
7.5.3 Proprietary estoppel
7.6 Conditions for the validity of fully secret trusts
7.7 Conditions for validity of half-secret trusts
7.8 Some issues with the validity of secret trusts
7.8.1 Communication
7.8.2 Co-ownership
7.8.3 Where the secret beneficiary or secret trustee is also a witness
to the will
7.8.4 The death of secret beneficiary or secret trustee before
testator
7.9 Secret trusts – express or constructive?
Chapter 8: Resulting and Implied Trusts
8.1 Introduction
8.2 The classification and theoretical basis of resulting trusts
8.3 Presumed resulting trust where A makes a voluntary payment
to B
8.3.1 The presumption of a resulting trust where there has been a
voluntary payment
8.3.2 Presumed resulting trusts and the voluntary conveyance of
land
8.3.3 Rebutting the presumption of a resulting trust
8.4 The presumption of advancement
8.4.1 The operation of the presumption of advancement
8.4.2 Rebuttal of the presumption of advancement
8.4.3 Abolition of presumption of advancement
8.4.4 Evidence of an illegal purpose
8.4.4.1 Illegal purposes and rebutting the presumption of
advancement
8.4.4.2 Illegal purposes and rebutting the presumption of a resulting
trust
8.4.4.3 The doctrine of locus poenitentiae (repentance)
8.4.4.4 Prospects for reform
8.5 Purchase money resulting trust
8.5.1 Presumption applies to land and pure personalty
8.5.2 Evidence to support presumption of resulting trust
8.5.3 Rebuttal of presumption of purchase money resulting trust
8.5.4 Quantification of contribution to purchase price
8.6 The family home
8.7 Resulting trust where A transfers property on express trusts,
but the trusts do not exhaust the fund
8.7.1 Reasons for the failure of an express trust
8.7.2 Was there a trust to begin with?
8.8 Implied trusts
8.9 The Quistclose-type trust
Chapter 9: Constructive Trusts
9.1 Introduction
9.2 The constructive trust and other remedies
9.3 The established categories
9.4 A constructive trust of unauthorised profits
9.4.1 Application of rule
9.4.2 Source of benefit/profit
9.4.3 Use of information to make profit
9.5 Mutual wills
9.5.1 Requirements for the principle of mutual wills to apply
9.5.2 Mistaken belief that mutual wills executed
9.5.3 Operation of mutual wills
9.6 Constructive trust where property has been acquired by the
fraud of the defendant
9.6.1 The meaning of “fraud”
9.6.2 Overlap with proprietary estoppel
9.7 Where property is acquired by unlawful killing
9.8 Substantive trust or merely a remedy?
9.8.1 The 1970s development – the “new model” constructive
trust
9.8.1.1 Family arrangements
9.8.1.2 Licences
9.8.1.3 Registered land
9.8.2 The return to orthodoxy?
Chapter 10: Trusts of the Family Home
10.1 Introduction
10.2 The background
10.3 The problem for the courts
10.3.1 Types of dispute
10.3.2 The applicable law
10.3.3 Distinctive features of disputes about family law
10.3.4 Reform proposals
10.4 Resolving disputes about ownership of the family home: the
starting point
10.4.1 Purchase of family home in sole name
10.4.2 Purchase of family home in joint names
10.4.3 The time for assessing common intention
10.5 Express declaration of trust
10.6 Resulting trusts and the family home
10.7 Common intention constructive trusts and the family home
10.7.1 Establishing common intention in sole ownership cases
10.7.1.1 Actual agreement
10.7.1.2 Inferred agreement
10.7.1.3 Illegal purposes
10.7.2 Establishing common intention in joint ownership cases
10.7.3 Detrimental reliance
10.7.4 Differences in the treatment of married and unmarried
couples
10.7.4.1 Quantification not a pure numerical exercise
10.7.4.2 Factors to be taken into account
10.7.4.3 Some examples of how courts have approached
quantification
10.7.4.4 The relevant date for determining the value of the beneficial
share
10.8 Co-ownership and the family home
10.8.1 Some specific issues with co-ownership
10.8.1.1 Can the legal estate owner evict the equitable co-owner?
10.8.1.2 Can the single trustee pass a good title to a purchaser?
10.8.1.3 Undue influence in execution of charge by co-owners
10.8.1.4 What can the equitable co-owner do to effect a sale?
10.8.1.5 What can the equitable co-owner do to prevent a sale?
Chapter 11: Charitable and Purpose Trusts
11.1 Introduction
11.2 Charitable trusts – advantages
11.3 The definition of charity before the Charities Act 2006 (CA 2006)
11.4 The definition of charity under the Charities Act 2006
11.4.1 The descriptions in s2(2)
11.4.2 Wholly and exclusively charitable
11.4.3 Trusts for the prevention or relief of poverty
11.4.4 The advancement of education
11.4.5 The advancement of religion
11.4.6 Other charitable purposes
11.4.6.1 Relief of the aged, disabled and poor
11.4.6.2 Recreation and sport
11.4.6.3 Animal welfare
11.4.6.4 Miscellaneous purposes
11.4.6.5 Purposes to be carried out abroad
11.4.6.6 Political purposes
11.4.7 The element of public benefit
11.4.7.1 Application of public benefit requirement prior to the
Charities Act 2006
11.4.7.2 The public benefit requirement under the Charities Act 2006
11.5 Administration of charities
11.6 The cy-près doctrine
11.6.1 The cy-près doctrine in outline
11.6.2 Circumstances in which the cy-près doctrine can be applied
11.6.3 General charitable intent
11.6.4 s14 Charities Act 1993: unknown and disclaiming donors
11.6.5 Application cy-près of gifts made in response to certain
solicitations
11.6.6 Gifts to defunct charities
11.6.7 Cy-près schemes
11.6.8 Reforms to cy-près, introduced by the Charities Act 2006
11.7 Non-charitable purpose trusts
11.7.1 Trusts of imperfect obligation
11.7.2 Trusts for specific purposes that have been accepted as valid
11.7.3 Trusts for persons and purposes
11.8 Special problems relating to unincorporated associations
11.8.1 The situation where property is held by trustees
11.8.2 Gift to members of an unincorporated association
11.8.3 The contract solution
11.8.4 A body that is not an unincorporated association
11.8.5 Avoiding the problems
Chapter 12: Trustees
12.1 Introduction
12.2 The office of trustee
12.2.1 Unanimity
12.2.2 Capacity to be a trustee
12.2.3 Disclaimer of trusteeship
12.2.4 Number of trustees
12.3 The appointment, retirement and removal of trustees
12.3.1 The appointment of the first trustees
12.3.2 The appointment of new trustees
12.3.2.1 When replacement trustees can be appointed
12.3.2.2 The process of appointment
12.3.2.3 Appointment of trustees by the court
12.3.3 Vesting of trust property
12.3.4 Retirement of trustees
12.3.5 Removal of trustees
12.4 Trustees as fiduciaries
12.4.1 The no conflict rule
12.4.2 The no profit rule
12.4.3 Remuneration of trustees
12.5 Trustees’ duties towards the trust property
12.5.1 General duties
12.5.2 The specific duty to invest
12.6 Trustees’ duties regarding beneficiaries
12.6.1 The duty to treat beneficiaries equally
12.6.1.1 The duty to convert
12.6.1.2 Apportionment
12.6.2 The duty to provide accounts and information
12.7 Trustees’ powers
12.7.1 Basic powers
12.7.2 Delegation
12.7.3 Power of maintenance
12.7.4 Power of advancement
12.7.5 Control of trustees’ discretion
12.8 Variation of trusts
12.8.1 The Variation of Trusts Act 1958
Chapter 13: Remedies for Breach of Trust
13.1 Introduction
13.2 Liability for breach of trust
13.2.1 Who is liable?
13.2.2 Right to contribution or indemnity
13.3 Personal liability of trustees
13.3.1 Measure of liability
13.3.2 Trustees’ protection and defences
13.3.2.1 Under a provision of the trust instrument
13.3.2.2 Impounding the beneficiaries’ interest
13.3.2.3 Relief from liability under s61 Trustee Act 1925
13.3.2.4 Limitation period
13.4 Tracing – general
13.4.1 Tracing at common law
13.4.1.1 The property must remain identifiable
13.4.1.2 Loss of identity
13.4.1.3 Mixed funds
13.4.1.4 Defences to common law tracing
13.4.2 Equitable tracing
13.4.2.1 Advantages of equitable tracing
13.4.2.2 Limitations of equitable tracing
13.5 Tracing as between beneficiary and trustee
13.5.1 Mixture of beneficiary’s money with trustee’s money
13.5.2 Tracing money paid into an overdrawn account
13.5.3 Assets purchased with mixed funds
13.5.4 Tracing into mixed funds
13.5.5 Tracing into active bank accounts
13.6 Tracing in a commercial context
13.7 The equitable liability of strangers to the trust
13.7.1 Trustees de son tort
13.7.2 Knowing receipt
13.7.2.1 Knowledge
13.7.2.2 Receipt
13.7.3 Dishonest assistance in (or procurement of) a breach of trust
 

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