When I started in practice many years ago, my then senior partner told me that the path towards being recognised as an ‘expert’ had three distinct phases. The first phase was one of youthful exuberance, when you were prepared to have a go at anything that came across your desk and tell everyone how easy it was. In the second phase, as lines start to appear on your brow, you become more measured in your approach, and as clients begin to be referred to you on a regular basis your name is recognised by other professionals within your field.

The third and final phase occurs when you are truly regarded as an expert with a national reputation, with the required grey hair and reading glasses. You are then forced to research every aspect of your work in such detail that it dawns on you that there is so much you do not know that you feel, in the interest of the fee-paying clients (and your insurers), it would be best if you ceased practice as soon as possible!

Kessler’s 6^th edition, I am pleased to say, is an admirable prop for anyone who works in trusts and will trusts. This book is for the professional and should appeal to anyone who practices in this field, whether recently qualified or a seasoned campaigner. Kessler’s aim is to aid the draftsman by discussing general and technical issues that arise in the drafting of settlements and will trusts – and to provide precedents. He takes, as his title indicates, a ‘modern approach’. However, those long embedded in wordy precedents may not appreciate this approach, and the use of punctuation may shock some. It is modern in style, but also shows all of the hallmarks of an experienced trust ‘anorak’ – copious footnotes, teaching or reminding the reader why clauses are drafted in a particular way, with the usual statutory references.

It is a measure of the pace of change in the field of trust law that it was only ten years ago that the first edition was published, and barely two years since the last edition. However, much has happened to prompt this new edition – not only the Trustee Act 2000, but also a number of important cases, together with increasing volumes of Inland Revenue guidance and the inevitable Finance Acts. Kessler has also used the opportunity to increase the scope of the work by the useful inclusion of new chapters on charitable trusts, restricting rights of beneficiaries and trusts for disabled beneficiaries.

This edition runs to 30 chapters and 380 pages of well-researched text, together with a number of model precedents for both inter vivos and will trusts. It should be noted that the will trust precedents are exactly what they say, and are not complete will precedents – the user is given a prompt ‘other legacies, appointment of guardians etc, follow here’. The book also comes with a CD-ROM, so that you can use the precedents with minimal fuss. The reader will also be pleased to find appendix 3, which gives details of a number of useful websites for trust practitioners – the first being Kessler’s own site, and the last one being for legal jokes, which I am sure we all need from time to time to put our work into perspective.

The book is set out in a very logical way and is drafted in short digestible chunks, which very much mirror Kessler’s own comments in chapter 2 on ‘Style’. There is a useful table in this chapter suggesting plain and modern English alternatives to many familiar but archaic words and expressions, a number of which are felt to be superfluous in any event. For those readers who were brought up to draft trusts that had to be as long as possible and with no punctuation, just to read chapter 2 in itself will justify the outlay. I, myself, now feel far happier in placing the odd comma and full stop into trust deeds and wills, although it is a hard habit to acquire!

In my view, trust lawyers require the widest breadth of skills of any legal discipline. While there is a lot of science involved, it is, in essence, an art form. No two clients are identical, and while we must all have model precedents, Kessler’s book also includes well-informed and helpful commentary on the subjective elements involved in trust drafting. It can never replace thorough and sensitive client consultation, but reminds us of all the elements important to that process. Equally, Kessler is happy to point out aspects that are unimportant – in chapter 9 there is a lovely attack on ‘Useless recitals’, my favour being:

1. Consent of Trustees

The book is restricted to the drafting of trusts. It does not set out to cover tax, although Kessler is clearly well informed on tax aspects. In particular, chapter 19 on will trusts does include very sound advice on drafting techniques in order to ensure that the practitioner gets maximum use out of the nil-rate band; loan and charge arrangements (which are currently very topical in view of escalating property prices and reducing stock market values); and assets qualifying for business or agricultural property relief.

Where tax advice is needed, the reader is directed towards the use of specialist counsel instead. In s11.2, there is advice on how to instruct counsel:

For comfort, there is even a section headed ‘Relying on counsel’s advice’ (5.28), which informed the solicitor that, while they are entitled to rely on counsel’s advise, they must not do so blindly, because if the advice is obviously or glaringly wrong, the solicitor is under a duty to reject it. I sometimes wish I could tell my own clients the same thing about my work!

Kessler also makes references to areas of trust and related law that require reform. He finishes his chapter on ‘Trusts for disabled beneficiaries’ pointing out that the taxation of trusts for the benefit of disabled people is a tax backwater, and makes a plea for this to be included in the project to rewrite tax legislation in plain English. He makes a strong case for the abolition of the nil-rate bands between spouses. He also has a note of satisfaction in his continuing argument for the abolition of the £5 fixed stamp duty, commenting that this is likely to be achieved in the Finance Act 2003.

The Trustee Act 2000 has had a major impact on all of us practicing in this field. The aspect that most of us will be involved in on a day-to-day basis will be that of delegation and investment management. I have been, I suspect like most other readers, bombarded with literature from the investment industry telling me how I must now take advice from them, let them manage all of our trust funds or end up being liable for breach of my duties under the Act. The book addresses these issues from an academic standpoint, and provides a precedent for a clause allowing the trustees to opt out of the restrictions on delegation in ss12 to 15 of the Act, which includes the duty to prepare a policy statement.

While I would not seek to attack the intellectual basis of the argument, in practice I have found the discipline of preparing policy statements for trusts to be a very valuable exercise for the trustees, the investment advisers and the beneficiaries. This is particularly so against the background of declining equity markets, which have been the investment home of most trusts that do not exist to support family ownership of landed estates. It may well be in the next edition that this area of text will expand, once we have seen judicial comment on the practical application of these provisions of the Act.

Any criticism? Not really – this is a comprehensive work, written in a clear and neat style by a well-informed, practical author. It is a work that I feel sure will require regular updating, as the pace of change seems to increase relentlessly. There may be a case for a loose-leaf version in the near future, but perhaps not – as with any well-read library ‘whodunit’, usually the page I am looking for is almost always missing! At least with a traditional hardback you are not lulled into a false sense of security that it has always been promptly updated. However, I do wish that Kessler could find some way of reducing the number of sub-paragraphs in some of the precedents, as I suspect that both practitioners and clients may get a bit bemused by references to 3.2.2.2.2 etc, although, I must admit, I have tried on my own precedents and failed miserably!