Law of Trusts - Exam Technique by the Trust Guru Himself

LAW OF TRUSTS
Exam Technique - William Swadling

Since the examination is almost upon us, it might be useful to say a little about examination technique. Many external (and internal) students, though they clearly know the law, do not do as well as they should because of poor exam technique.

The Golden Rule

There is one golden rule in doing law exams: answer the question. This might seem obvious, but at least 90% of students answer the question they wish had been asked, not the one which was. You cannot expect to get credit for an answer which does not address the question, no matter how accurate the information you give may be. If in a history exam, you were asked to give a list of the kings of England but instead gave one of the kinds of Israel, then no matter that your list was perfect in everyway, you would receive a mark of zero, for you have not answered the questionasked. Law examinations are no different.

It should be remembered that much work goes into preparing your examination papers. The Chief Examiner will spend many hours setting the papers, which are then checked by the Deputy Chief Examiner, whose comments are relayed back to the Chief Examiner. He or she will then rewrite the papers in light of those comments.

Those amended papers are then referred to a scrutiny committee of the External Laws Programme, where at least ten pairs of eyes review the amended papers. Their comments are in turn relayed to the Chief Examiner, who will amend again the papers accordingly. It is therefore a great disappointment to find students ignoring the carefully crafted questions and answering their own. It should, however, be no surprise to those students when they subsequently fail.

An increasing problem of late is the use by candidates of pre-prepared answers, written no doubt by third-rate lecturers in third-rate institutions. Students should NOT use these. First, they are generally of an inferior standard, far below thatexpected of a degree from the University of London. Second, they will inevitably not be an answer to the question, for the third-rate lecturer will not have the gift of foresight, and so will not know the question which will appear on the exam. It should not be forgotten that examiners mark hundreds and hundreds of scripts. It is therefore fairly easy for them to see when pre-prepared answers are being used.

So, how do you ensure that you ‘answer the question’? Let us first discuss essay questions, and then problem questions.

Essays

The ‘trick’ here is to deconstruct the question asked. Take the question to bits,and play it back to the examiner, explaining the issues which the question raises. Take,for example, the following question from a few years ago:

Any system of law which recognised the trust would have need of the automatic resulting trust, for this merely provides the mechanism by which property ineffectively given on trust beneficially remains with the would-be donor. On the other hand, there is no similar need for the presumed resulting trust, which is anachronistic and has largely outlived its usefulness.

Discuss.

The first thing to notice is that the examiner has not said, ‘Please write every thing you know about resulting trusts’. Yet, the vast majority of candidates will answer the question as if he did. What the examiner has instead done is ask a specific question, and the first thing to do is identify exactly what that is. And that is done by simply playing back the question in different language. So here, we could say that the question raises a number of issues.

First, it assumes that there are two types of resulting trust, the presumed and automatic. One issue is whether such a distinction is valid. Second, on the assumption that there really are resulting trusts which are ‘automatic’ (and the meaning of that word will need to be explained), the next question is whether such trusts are needed. Is there no other way of dealing with the situations to which they are a response? Third, is it correct to say that such trusts arise because the property ‘beneficially remains with the would-be donor’? And fourth, what is the true based of presumed resulting trusts? What is the presumption in play in such cases? And can it really be said to be anachronistic?

Notice that in deconstructing the question, you have provided yourself with a structure for your answer. Moreover, you have ensured that everything you then say will be of relevance to the question asked. After that, you can’t go wrong!

Problem questions

These again are not an invitation for candidates to write all they know about a particular subject. So, the first three pages of your answer should NOT consist of a potted summary of the law on, for example, secret trusts. The examiner will simply get out a red pen and score through this part of your answer. What you should instead do is identify the broad area of the question (‘This is a question on secret trusts’) and then the specific issues it raises (‘There is a problem as to the timing of the communication of the terms of the half-secret trust’; ‘there is a problem as to the lack of written evidence concerning the alleged declaration of trust respecting Blackacre’; ‘there is a problem in that the communication was made to only one of two trustees’; etc, etc’). Not only have you now got a structure for your answer, but you also have a check-list to which you can refer to ensure that you’ve not omitted anything important from your answer. There’s nothing worse than coming out of the exam room and saying to yourself, ‘Oh, I forgot to mention the communication point’. Detailing the issues at the start helps prevent this.Moreover, it demonstrates to the examiner that you are someone who knows what they’re talking about.