Drafting Trusts and Will Trusts in Autstralia

Book Review: Drafting Trusts and Will Trusts in Australia

By James Kessler QC and Michael Flynn

Published by Thomson Reuters

Reviewed by Shaun Gordon

In Drafting Trusts and Will Trusts in Australia, James Kessler QC and Michael Flynn have written a concise, insightful text. With a focus on many of the practical issues to be considered when drafting trust instruments, the book is more of a “hands-on” reference than an academic text. Despite this, Kessler and Flynn have worked hard to cover the fundamentals of the law on the subject matter.

As indicated in the title, the book seeks to be relevant across the various Australian jurisdictions. That, of course, is no small challenge and the authors should be commended for their efforts in cross-referencing the applicable legislation, wherever possible. Unsurprisingly, the authors acknowledge that this complicates their task and recommend diligence on the part of the reader to properly familiarise themselves with the legislation to be applied in any particular case.

Similarly, Kessler and Flynn recognise that there is no “one way” to approach the drafting task and issues of personal style and the particular circumstances in which the trust instrument is to be drafted will dictate what is ultimately required to be produced by the drafter. In that context, the book is a useful tool, guiding the would-be drafter to consider matters of substantive content, style and form as well as, importantly, to flag potential pit-falls that may otherwise undermine the effectiveness of the instrument in meeting its intended purpose.

There are twenty-five substantive chapters in the book. Topics include:

first principles in relation to dealing with clients when drafting trust documents;
approaches to the interpretation of trust documents;
issues arising in relation to beneficiaries, trustees and their duties and powers;
the rules against perpetuities and accumulations;
general provisions of a trust;
drafting, understanding and exercising overwriting powers (appointment, variation, resettlement and advancement);
settlor exclusion clauses;
discretionary trusts, child maintenance trusts, will trusts, bare trusts, charitable trusts and trusts for disabled beneficiaries;
administrative provisions;
governing law, place administration and jurisdiction clauses;
executions of wills and trust deeds;
appointment and retirement of trustees;
indemnities for executors and trustees; and
stamp duties issues.

Also included are a number of precedents. A CD-ROM containing electronic versions of these precedents is included with the book.

Given the breadth of possible issues that can arise in drafting trust documents, Drafting Trusts and Will Trusts in Australia has its limits, as must be expected. The real benefit of the book is its use as a guide to make sure fundamentals are covered in the course of the drafting process. In that context, the book is probably best suited to those who do not regularly draft these types of documents. The soft cover version is available from the publisher for $159.95.

Happy drafting.

Shaun Gordon
Fullagar Chambers