Drafting Trusts and Will Trusts James Kessler, 5^th Ed. (Sweet & Maxwell, London (2000))

It is sometimes suggested that producing documents for clients to sign is inevitably menial work which any semi-educated person could perform, it being only greed which enables the avaricious lawyer to charge for their preparation. Of course that is fallacious: often considerable skill is required merely to ascertain the precise wishes of the client, and to translate those wishes into clear instructions. For, in order to ascertain those wishes, one may well have to put choices before the client, which the client has never considered. Particularly is this so, when taxation matters require attention. So from the outset a competent draftsman (or woman) must have a sound appreciation of many aspects of trusts, succession and tax law, as well as a passing acquaintance with many other areas, like family, property and insolvency law.

But, even armed with full instructions taking proper account of these areas of law, the problem of producing appropriate documents may call for substantial expertise, notwithstanding that only a simple document is all that is needed, One may here recollect Lord Leverhulme’s celebrated remark that he knew that half of his advertising budget was wasted, but not which half. So, with documents, it is easy to know that many documents can be simplified, but it is less easy to know how - witness the frequent utterances of incoming Chancellors of the Exchequer in regard to simplifying the tax code.

Therefore a book of precedents whose purpose is to provide genuine aid to the professional lawyer will assist its reader in identifying problems, knowing which questions to ask, when to ask them and, most importantly, why to ask them. ‘Most importantly’ because it is in being able to answer this last question that the draftsman can extirpate error. This sequence of identifying and then solving problems continues from first instruction to completed document: it goes on at a ‘macro’ level – is an interest in possession trust better than a discretionary trust for my particular client? – and at ‘lower’ levels – should the settlor be a trustee? What is the appropriate scale and breadth of administrative powers for this particular trust?

In Drafting Trusts and Will Trusts, the author provides welcome assistance at all these stages. He takes an obvious pleasure in clarity of expression, and succintness. Thus his precedents are often shorter than those of earlier generations. But his is not brevity for its own sake but for sake of a document which is more readable or more accurate (or both). (Useful illustrations of this are to be found at pages 20-21 where he suggests more appropriate replacements for archaic or prolix forms, but there are many examples throughout the text.) But such assistance, though helpful by itself, is rendered of much greater value because of the context in which it appears. By beginning at the beginning with chapters respectively entitled ‘First Principles’ ‘Style’ and ‘Principles of Interpreting Trust Documents’, the author guides the reader to a proper understanding of the subject of drafting rather than merely acquainting the reader with a miscellany of helpful tips.

Therefore, when the reader comes to the precedents themselves he or she is alive to, and in tune with, the author’s approach, thereby making the precedents intellectually accessible. In addition, as an adjunct to the precedents, the author takes the time and trouble to explain other possibilities setting out the reasoning which has led to his conclusion, thereby significantly augmenting the ‘comfort factor’ of using his precedents – here is a person who has already travelled the route which the reader finds himself on, and hence the reader can have confidence in the solution proposed in the precedents. Alternatively, the reasoning enables a more informed solution to be arrived at by an experienced draftsman willing because of that experience to depart from precedents. In this context one may mention expressly that the author’s opinions are not merely assertions. The footnotes cite relevant authority, not with a pedantic academic’s indulgence of every available reference which might be thought capable of having a bearing on the point; rather, with sufficient authority to give comfort to the reader, that here is a person who has reached a firm conclusion after proper consideration of the relevant issues.

This approach is continued throughout the narrative. For example, chapter 18 entitled "Administrative Provisions" contains some seven pages devoted to identifying those provisions, forms and powers hitherto often included in trusts documents, which nonetheless may sensibly be omitted. But, as with his comments on the precedents themselves, by giving his reasons the author empowers the reader either to make the omission in his or her own drafts or at least to make a rational decision to include such provisions notwithstanding the author’s opinion. Thus these sections, to adapt the advertising metaphor, enable the reader to identify and reject the useless whilst retaining the useful.

Of course, though to consult some books of precedents one might think the point has been overlooked, to obtain full value from a book of precedents, those precedents have to be accessible, for not even the best precedent will be of utility if it remains undiscovered. So an orderly presentation which enables the reader easily to find either what is sought or that there is no suitable precedent for his needs, is essential. Here too, Drafting Trusts and Will Trusts scores highly both in the internal layout of each precedent and the juxtaposition of the precedents themselves. Additional features include a free disk which reproduces the precedents and hence removes the tedium (and room for error) of copying the drafts, and references to the author’s website where authorities and other material not readily available to some practitioners are made available.

So this reviewer found in this work utility and scholarship combining harmoniously. There is much of genuine worth. But sometimes scholarship and worth do not sit alongside readability. Happily not so here. The author has a lightness of touch, interspersed with humour which makes using this work genuinely pleasurable. At least to this reviewer, it falls within the category ‘must have’.

Ian Dawson,

University of Newcastle upon Tyne.

Published in Taxation.

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