THE LIBRARY

Drafting Trusts and Will Trusts—A Modern Approach, James Kessler Q.C. (7th ed., Sweet & Maxwell, 2004), 549 + lvii pp, CD-ROM of precedents, £99 +vat

This is the seventh edition of Mr Kessler’s popular book Drafting Trusts and Will Trusts—A Modern Approach. In the 12 years since the first edition, this book has gone through many changes, growing from 11 chapters to 33 chapters and precedents. The substantive text is currently 424 pages, with a further 100 pages of “precedents”, which include interest in possession trusts, accumulation and maintenance trusts of three kinds, and references to various other resources of use to the chancery practitioner. The precedents are also made available on a CD-ROM included with the book. The scope of the book is on private client trusts and on wills, as opposed to the drafting of other forms of trusts. This is unsurprising being a sizeable portion of Mr Kessler’s practice at the Chancery bar. The book began life as a guide to the drafting of will trusts and private client trusts intended to advocate a simple use of language and a conceptual clarity, while negotiating the minefield of trusts law, tax law and other legal principles which impose on the draftsperson.

What is immediately apparent about the precedents is how short they are compared to the extremely long standard form trusts which many chancery practitioners in Lincoln’s Inn have on their word processors—which usually comprise a mish-mash of standard basic provisions carefully adapted over time, occasional clauses picked up from different decided cases or from involvement in particular cases, with each non-standard clause rendered in square brackets so that it can be pruned or adapted to fit the circumstances. This brevity fits in with Mr Kessler’s philosophy of neat, clearly-expressed drafting, although I suspect that the word processor of James Kessler Q.C. is in fact filled to overflowing with long, complex settlements sculpted so as to achieve particular tax avoidance and other goals.

This is a tension at the heart of this book. Its principal goal is by way of being a sort of public service. At the first level it is a cri de cœur for clearer drafting practice. At the second level it provides a resource for practitioners who toil alone on their clients problems and aspirations,top

trying to render them in tight legal language without accidentally falling into some heffalump trap set by tax law, succession law or trust law. And therein lies the tension because the book is concerned to identify many of the heffalump traps into which practitioners may fall while still being determined to simplify the approach to drafting so far as possible. Many of these chapters are only two or three pages long, and so identify problems merely rather than necessarily picking over them in detail. Chapters, for example, on choice of jurisdiction and other issues relating to conflict of laws indicate precisely how wide is the field of legal principle with which the practitioner must be familiar when drafting settlements either to achieve her client’s goals or to avoid problems which she may otherwise face.

There is a sense in which one assumes that the author has in his mind’s eye a lonely practitioner on the high street, or perhaps in a medium-sized firm, working alone deep into the night and imagining what else there might be which could possibly go wrong or what else should be done right. By definition, the focus of this book is on private client trusts and wills and so it will tend to be the business predominantly of such smaller legal practices; whereas many other major trusts textbooks (Lewin on Trusts, Underhill and Hayton on Trusts and Trustees, Thomas and Hudson on Trusts) also focus on the business of the larger legal practices in relation both to the corporate use of trusts and the equitable doctrines which grow out of trusts law. However, Mr Kessler’s book is undoubtedly also an important resource for more experienced practitioners because it draws together significant developments in tax and other laws with the business of drafting private client trusts—its regular updating by way of its seven editions (approximately an edition every two years) being testament to this point. That link between legislative and case law developments, and the nitty-gritty of “that particular document required for that particular client” will be of particular succour to this book’s readership.

And this is the heart of the matter. The strength of this book is its role as a sort of modem (please stay with this analogy because I think it works) connecting the practitioner-reader’s word processor with all of the material in the textbooks on trusts, succession and tax law, the legislation dealing with those areas, and the case law on those areas. It has developed so as to operate not only as a guide to drafting but now also gateway to a consideration of the more detailed legal issues which commonly arise from case to case, client to client. The book is simply not sufficiently long to consider in detail any of these individual legal areas—particularly given that the substantive text is only 424 pages—but it does work well as a series of signposts as to significant issues which the practitioner-reader must consider when drafting a private-client trust or will. It is a “modem” in the sense that it connects the reader’s word processor to the wider libraries of information needed by the practitioner.

One example of this modem-like quality, picked at random, relates to resulting trusts and the particular question of drafting a trust which seeks to ensure that no interest should result to the settlor—the problem which Mr Vandervell legendarily suffered in that well-known litigation. Mr Kessler identifies in a paragraph two lines of authority relating to trusts which provide that no interest should result to the settlor if the trust should fail. It is suggested that in Air Jamaica v Charlton (a case in which an employer did not wish the surplus assets in an employee pension fund to result to the employer, so as inter alia to protect it from asset strippers) the Privy Council accepted that this provision should operate so as to prevent the settlor receiving any interest; whereas it is suggested that in Westdeutsche Landesbank v Islington the House of Lords (in the person of Lord Browne-Wilkinson, as it happens) suggested that gifts which fail should pass bona vacantia to the Crown. Now, Mr Kessler is constrained by the size of his project from considering in detail the very different contexts of the pension fund in Air Jamaica v Charlton and the interest rate swap contract held to have been void ab initio in Westdeutsche Landesbank v Islington. He is also constrained from considering that Lord Browne-Wilkinson’s dicta were obiter dicta: this is particularly so given that there is a third further analysis of the failed gift in that case. It should be remembered that in Westdeutsche Landesbank v Islington it was comparatively unimportant that the bank was entitled to restitution at common law for money had and received and more significant that it failed to establish a proprietary right to the money which it had paid at the outset of the transaction to the local authority. As is less frequently observed, good title in those moneys passed from the bank to the local authority even though the contract which effected that transfer was itself held to have been void ab initio. So, one may argue on a third basis that good title might nevertheless pass away from the settlor even if the transfer fails in some circumstances—such as those relating to contracts—and so not result to the settlor.

Now, it is unreasonable to expect Mr Kessler to probe ever deeper, for example, into the debates surrounding the local authority swaps cases, on which I am as guilty as anyone of spilling over-much ink. But it is important to note, first, that Mr Kessler is not able in the girth of his book to go into such detail and, secondly, that that is perhaps a strength of his book. This seventh edition shows a development from, for example, the second edition (which I happened to pull down from the shelf when preparing this review) in that it makes clear to the practitioner-reader that there is a problem on the decided cases, for example, in relation to excluding resulting trusts, it provides footnotes for the sources (in treatise and in law) for these debates, and it thus allows the practitioner to consider the issue for herself. All-in-all, this is a great strength for this book: there is not as much time spent on many of the points of detail as in other books but that makes the book more user-friendly for its intended audience who can always look up those points of detail elsewhere for themselves once Mr Kessler has warned them that they require consideration. (Indeed, the preface to earlier editions of this book made a virtue of the book’s brevity as opposed to other people’s proclivity for writing “heavy textbooks”, a approach which I prefer and of which I am guilty.) Consequently, Mr Kessler provides us with a bridge between day-to-day practice and scholarly treatise.

The book is subtitled “a modern approach”: this deserves some consideration. The modernity refers to the clarity in drafting language which is advised by the author. As with all practitioner-authored books, the author also advises that the lay person take professional legal advice rather than to rely solely on either this book or her own resources in so doing: money spent on legal advice will save money in the long run, is the argument. I must confess to being one of those people who have no difficulty with the use of jargon and complex drafting language if the draftsperson’s meaning is technically clear, even if it may read unattractively to the lay person. Clearly, verbiage for the sake of verbiage is to be avoided: whether on the basis that it is generally produced by a practitioner who likes to charge easily-impressed clients by the page, or on the basis that it serves only to introduce ambiguity. Otherwise, technical language may be an aid to good drafting by avoiding the sort of colloquial ambiguities which, for example, litter the law on certainties in trusts law: think back to all those trusts for the benefit of “good friends” or to achieve “benevolent purposes” which failed.

Oddly, a detail from the first plate of Hogarth’s “Marriage a la mode” is still reproduced on the title page. While it is always a pleasure to see a Hogarth print (this one can be seen in the flesh in the National Gallery) this particular detail presents a bewigged lawyer scrutinising the terms of a settlement through eye-glasses which is odd when the book otherwise trumpets its modernity. I suppose we are expected to identify an irony in this juxtaposition. Irony and a lightness of touch typify the author’s approach: a reassuring style of commentary which prevents this book from descending into the sterile abstractions of many tax and estate planning texts. What seems clear to me from the Hogarth print is the necessity of the well-shod client, who is pointing to a detail from his family tree while addressing the lawyer, taking expensive legal advice from a chancery specialist as to the amendment of the family settlement in time-honoured fashion. However, for the modern chancery lawyer, the revenue legislation comes thick and fast together with statements of Revenue practice and the bewildering array of electronically-reported cases in succession law, trusts law, family law and so on. As such a book like Mr Kessler’s which is so regularly updated and which takes the reader’s hand in such a disarming fashion (no pun intended) must be of great value to the practitioner.

Professor Alastair Hudson

Queen Mary, University of London

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