“Drafting Trusts and Will Trusts – A Modern Approach” (7^th Edition)

James Kessler QC (Sweet & Maxwell, 2004)

He offered to read the draft to the plaintiff; but she refused, as she did not understand law terms; and at the time the deed was executed he repeated the offer with a similar result. It appeared that the plaintiff became acquainted with the effect of the settlement very soon after her marriage and expressed her dissatisfaction therewith” .... (Woolaston v Tribe (1869-70) LR 9 Eq 44).

James Kessler QC offers this cautionary tale in his introductory page of drafting quotations in his new 7^th edition of Drafting Trusts and Will Trusts – A Modern Approach (Sweet & Maxwell 2004), as an illustration of one reason why drafting trusts is of such crucial importance. As with all types of legal documents, when preparing a will or trust, the draftsman has the responsibility for documenting the wishes and desires of the client, who may not be well versed in the effect of his decisions and will rely on the professional draftsman to put his wishes into effect. The importance of correctly drafting will trusts in particular lies in the fact that, in many cases, poor or ambiguous drafting will not be discovered until the attempted interpretation of the document at a time when the testator is unable to give further instruction or clarification.

The new edition has not strayed far from the winning formula previously employed. Maintaining the structure adopted since the book’s first publication, it moves from introductory definitions of common terms to comprehensive precedents at the end, with the body of the book assessing each common type of trust in detail.

Modifications and additions have been necessary to reflect the progression of legislation and case law as well as practice area developments. Changes relating to Stamp Duty and the introduction of Stamp Duty Land Tax brought in by the Finance Act 2003 have, for example, necessitated the revision of Chapter 29, in which the author guides practitioners through the operation of the present rules on dutiable transfers to settlements, concluding with the persuasive argument in favour of abolition of the application of this regime to lifetime trusts.

There are three new chapters in this edition. Chapter 31 addresses nil rate band discretionary trusts, and James Kessler comments that the unnecessary complications of NRB trusts could be avoided if the band became a transferable asset in itself. Pending legislative change, this chapter has a useful discussion of debt and charge planning for the family home, highlighting the concern expressed by Peter Twiddy of the CTO that some such arrangements may be “shams”, and how the risk can be minimised.

The new Chapter 32 contains a detailed treatment of appointments and retirements of trustees, and Chapter 33 addresses the topic of trustees’ indemnities, all of which are frequently the subject of debate or dispute. The drafting of such documents is a welcome inclusion in this edition, and sits logically with the drafting of the trusts to which they relate.

Not only is the book legally current as well as sensitive to the present issues in ‘private client’ practice, but it also excels in ensuring it remains reflective of changes in society. As an example, the inclusion of guidance on provision for children born by surrogacy highlights the fact that wills and trusts are employed in the modern day in a variety of circumstances, and modern drafting must take account of changing familial structures as well as advances in the law.

James Kessler has, as always, taken heed of his own advice in Chapter 1 that “Drafting does matter” in this 7^th edition of a thorough, thoughtful and logically constructed book, trusted by and indispensable to practitioners throughout the private client field.

Clare Ludlam

Allen & Overy LLP