DRAFTING TRUSTS AND WILL TRUSTS
in the CHANNEL ISLANDS


By James Kessler and Paul Matthams (Sweet & Maxwell)

Reviewed by Michael Wood, Herbert Smith

This tidy work numbers over 300 pages, with 23 chapters. It is part of the series by James Kessler QC (and collaborators) promoting, describing and facilitating the production of (relatively) plain English will and lifetime trust documents. It is an excellent book.

James Kessler [JK] is well known in the trust and tax world and can be relied upon to present difficult issues clearly and make sense of (or declare as nonsense) the opaque. His collaborator this time is Paul Matthams, both a Jersey advocate and English solicitor. The collaboration is a success.

Included are tables of cases, statutes and statutory instruments (both from England and Wales) and international legislation. The index is comprehensive and easy to use. Also included is a CD-ROM containing precedents that readily load onto a computer hard drive.

The footnotes are always informative and include some important material, as well as often being an entertaining read in themselves. And they are not without sensitivity: p.55 note 34, dealing with will drafting “The term “wife” is preferred….since….it is more apt than “widow” as well as being more cheerful”.

Appendix 2 offers some websites to visit but not all are as inviting as JK’s own. Appendix 1 contains a helpful annotated bibliography, with comments on drafting issues. A footnote also contains an abbreviated dyslogy aimed at looseleaf works, ‘They are expensive. One cannot comfortably open looseleaf works in the armchair. The CD Rom will ultimately replace them’. And, one might add, librarians will utter a huge sigh of relief. Bound precedent works remain intact and a continuing reference place for why particular words and phases have been adopted from time to time. JK refers to two such texts from the Fifties and one from 1965: the superb Hallett’s Conveyancing Precedents (also published by Sweet and Maxwell). Just as Hallett’s legacy endures to this day so one feels will JK’s influence in encouraging the use of plain English and disposing of those very many ‘legal’ phases that one suspects have only been retained through lack of knowledge and fear of change.

Having given us a short history of the Islands in Chapter 1 the authors follow with comments on style. This is an amusing and informative chapter. In response the Lord Reid deploring modern drafting practice we have ‘But in the authors’ experience the professional trust drafter is hardly ever guilty of causing obscurity by excessive brevity’. We are told ‘There is nothing wrong with the word “and”. There is no harm in a proviso (a clause beginning “provided that …”) if used in moderation’. Gender drafting gets the Kessler treatment ‘It must be added that some do not see this as a question of style but as an issue of sexual politics on which views may be highly dogmatic’. This is followed by a table of suggested words and phases to replace the archaic or prolix. But just because this is a chapter on style do not assume there are no useful legal issues dealt with. For how long (a career perhaps?) have lawyers wondered at why the trust for sale is included in a gift of personal property? The answer, as we are told, is that there was never a need for those words. ‘These clauses can now be regarded as completely obsolete’.

There are excellent chapters on principles of interpretation (‘“Technical” (in this sense) is not a technical term! It is merely a term of abuse’) beneficiaries, exemption clauses, duration of the trust, in fact all that one will generally need to know about to enable the correct drafting decisions to be made. We have a worthwhile suggestion on replacing the verbose ‘children and remoter issue of the settlor’ with the ‘descendants of the settlor’. ‘Descendants’ is preferred to the word ‘issue’. The authors do not suggest widening the family class by using the formula of ‘descendants of the (great, etc.) grandparents of the settlor’ but this is only a small further step.

A good explanation of the position of illegitimate and adopted descendants is given and of artificial insemination and surrogacy issues.

The chapters on trustees are useful. This section on statements of wishes is a good refresher and that on powers, duties and controls is essential reading.

Chapter 8 offers just two pages on the Duration of the Trust, with opening reference ‘To those who have long struggled to comprehend the English law rules against remoteness’. The position is simpler in the Islands.

This is followed with a chapter dealing with the General provisions of a Trust and very welcome it will be to those who reflect (if they do in these days of networked precedents) on what should be included, in what order and why.

Powers of Appointment are given a good airing, including a warning on the difficulty of exercising such powers. We are told that ‘drafting instruments of appointment (and other documents supplemental to existing trusts) is more difficult than drafting a new trust’. Perhaps this is why such precedents do not appear in this book.

Charities and Purpose trusts get a good airing, as do practical issues relating to the efficient execution and formation of trusts and transfer of property to them.

The appointment and retirement of trustees are dealt with, as are issues concerning other factors such as Protectors and Enforcers.

The precedents included in both the bound book and CD-rom are:

The precedents are clearly presented in both formats and the content is much as one would expect from a Kessler product. The e-precedents are presented as Word documents.

The preface informs us that the Jersey and Guernsey laws are stated as at November 2006 but the implications of the UK Finance Act 2006 are not dealt with. The omission is a shame and in a few places the work would have benefited from that update. There are just a few typos but nothing to justify an early revision.

Practitioners should not only buy this book for the precedents but also read it cover to cover for both professional education and for some occasional light relief. The authors are to be congratulated.

Here is information on how to order Drafting Trusts and Will Trusts and other books by James Kessler QC.

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