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AUTHOR: JAMES KESSLER
5th edition published by Sweet & Maxwell: ISBN 0421 824 905 Price £95
by Toby Harris, Editor of STEP Journal
With a work such as this, the question is not whether a member of STEP should have a copy. If he does not already possess in his library one of the earlier editions then the matter is simple. He should buy this one. On the other hand, if the member of STEP already possesses an earlier edition, should he now replace it?
The book is essential to the average member of STEP because it contains within its pages (and more specifically in the floppy disc tucked inside the back cover), many of the precedents that are required in the day to day drafting of lifetime settlements and of wills that incorporate ongoing trusts. For this, the primary purpose, the book is extremely effective. Your reviewer, using the latest edition but without the help of a secretary, was able to produce within 23 minutes the draft of a will incorporating a Nil Rate Band Discretionary Trust and the "debt or charge" scheme in a fit state to submit to a client for approval. Production, on the same basis, of a draft settlement took 28 minutes. As a vehicle, therefore, for dealing with the situations that are regularly encountered in practise, this book is excellent.
The text of the book itself is a delight to read and for example chapter 25 on the drafting procedure contains much sound wisdom. Teased by a footnote, your reviewer was forced to compare the King James Version with the New English Bible to spot the missing text in 1 Samuel 14 to which James Kessler referred. Throughout the text there are excellent references to authority, both legal and otherwise.
The book and the disc that accompanies it are no substitute for proper legal drafting. They are not intended to be. James Kessler recommends that, following the preparation of an initial draft, it be reviewed 24 hours later and that the final review be by a person other than the draftsman. Such a review will, for example, tease out the necessary spacing between the numbers of clauses and their text. It will be noted, in using the disc, that where, for example, a clause is numbered "8.2.2.1" the text follows immediately without a space mark. It is for the draftsman to spot these points and tidy them up before the document leaves the office.
As to matters of style, James Kessler is of course forthright and unrepentant. That old shibboleth, that no sentence may being with the word "but" or "and", is roundly dismissed, mainly on the authority of Fowler’s Dictionary of Modern Legal Usage. James Kessler is probably right to attribute some of the drive for "plain English" both to the general loss of respect for the professions and to the fact that there are now in practice some lawyers who learn no Latin in their childhood or, like your reviewer, "learn it to a low level and forget it".
So what is new about this edition? The Trustee Act 2000 commands 28 references. Of these perhaps one of the most interesting is the discussion of the validity of exemption clauses. Many will agree with the statement that "exemption for trustees’ negligence is wrong in principle. It would directly contravene the wishes of the settlor, if he were asked; which he certainly never is. The duty of the draftsman is to advise, ascertain and carry out the wishes of his client, the settlor. The blanket exemption clause has no place in a standard draft."
Throughout the book maintains a crisp style that is not without touches of humour. It cannot have been by accident that one page ends with the words "there are three ways to deal with the problem of sex", even if the solution on the next page is somewhat prosaic.
It may be the duty of a reviewer to find minor fault with a work, to avoid the charge of sycophancy. If so, my gripe would be the index. Given the very useful discussion of trustee exemption clauses, it is a surprise to find there neither "Care, duty of" nor "Duty of care" or, under "Exemption clauses, trustees" any sub-heading relating to the duty of care. The relevant text is easy to find it you know your Trustee Act 2000. You can cross-refer from s1 or from Sch 1 (though the footnote reference is to para 5, which relates to insurance, when para 7 is clearly meant).
That should deter no-one from a purchase: certainly those who bought recently on my recommendation are well pleased.
Toby Harris, Editor of STEP Journal
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is information on how to buy James Kessler's books.
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