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The fact that this is the sixth edition speaks for itself: the book is good and in demand. Whilst the central core concentrates on high-value trusts, several other chapters provide fascinating insights into drafting and interpretation generally.
After opening chapters on first principles and style (themselves thoroughly absorbing) the author turns to principles of interpretation. This part deserves to be printed as a stand-alone essay and made compulsory reading for every lawyer. Naturally, Lord Hoffmann’s words in the Investors’ Compensation Scheme case take pride of place here. By skilful exposition, the author makes it crystal clear that:
the old so-called “rules of construction” should be treated with the utmost caution – they are signposts, not the destination itself
there is a crucial distinction between the meaning of words and the meaning of a document
in matters of construction, case law is not binding.
In fact, this book makes the last point extremely well, ending the passage by quoting Lord Hoffmann again:
No case on the construction of one document is the authority on the construction of another, even if the words are very similar.
But Mr Kessler does not leave it there, asking and answering the inevitable question: how does one ascertain meaning?
The author is admirably direct and does not sit on fences. To repeat the name of a party to a deed because that party wears more than one hat is “uncouth” (p122). The words “in this deed called” or “here called” (when labelling named persons) are “tiresome” (p130) as is the habit of listing beneficiaries in a schedule (p128). Italicising or capitalising defined expressions wherever used results in “rather messy typography” (p129). Other examples are: “Permanent endowment is a terrible nuisance” (p324); “How silly!” (the £5 fixed stamp duty on charitable trust deeds–p329); “the rule against accumulation should be abolished” (p221). The author says that a single coherent set of rules is needed for inheritance tax and capital gains tax which might be slipped into the UK tax re-write project “in the unlikely event that this ambitious project ever re-writes the IHT and CGT legislation” (p342). Whether we agree or not, we certainly know where Mr Kessler stands.
Mr Kessler draws widely on numerous sources (giving website addresses where appropriate) and treats the parliamentary drafter as inspiration and model. Fair enough. Yet he is wise enough to realise that everyone is fallible. He cites Alexander Pope:
Whoever
thinks a faultless piece to see
Thinks
what ne’er was, nor is, nor ne’er shall be.
Doubtless the odd typographical or other mistake can be found in Drafting Trusts and Will Trusts as in any other book ever written. But this book, which ends with some sensible advice on the execution of wills and will trusts, should be in the library of everyone interested in the science and art of drafting legal documents.
Richard Castle
Wellington, New Zealand
Clarity 50, November 2003 page 42
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