Equity, Trusts and Probate Practice
Equity
Know the maxims (he who comes to equity must come with clean hands; delay defeats equity; equity looks to substance not form) and the discretionary remedies - specific performance, injunction, rectification, rescission, account of profits, tracing. Understand equitable doctrines such as estoppel, part performance, election, satisfaction, conversion and laches, and that equitable remedies are discretionary and lost by delay or misconduct.
Trusts
Classify: express (fixed or discretionary), resulting (automatic or presumed), constructive (imposed by law, e.g. fiduciary gain). Creation requires the three certainties - intention, subject matter, objects - plus formalities (writing for land, valid execution for wills, secret trusts) and constitution (vesting the property in trustees). Trust beneficial interests fail if there is no ascertainable beneficiary (beneficiary principle). Trustee duties: act unanimously, invest prudently, keep accounts, distribute to the right beneficiaries, avoid conflicts and unauthorised profit; powers include delegation and advancement. Breach of trust, tracing and the personal and proprietary remedies follow.
Probate
Will validity needs capacity, knowledge and approval, intention and due execution; know revocation, alteration and revival. Learn grants - probate, letters of administration with and without the will - and the administrator's duties: collect assets, pay debts and tax, distribute, keep accounts. Know intestacy rules and family provision claims.
Traps: confusing resulting with constructive trusts; forgetting that an executor's authority comes from the will, while an administrator's comes from the grant.
Rule of thumb: fail any one of the three certainties and the trust fails - certainty of intention, subject matter and objects.