Drafting Trusts and Will Trusts – A Modern Approach – seventh edition by James Kessler QC
For your bookshelf, how do you, dear reader like your lawyer, eg: category A: conservative (with a small c), pedantic, verbose, complex, out of date, difficult to follow; or category B: modern, succinct, easily understood (even by most clients), written with humour?
For category B, definitely plump for James Kessler QC; he will even provide you with a built-in CD for the precedents. Moreover, this work, now in its seventh edition, has versatility: background explanation for lifetime trusts and wills, plus clearly written precedents. To quote from the preface, ‘The explanation is of the essence; the adoption of a precedent without understanding it fully is a recipe for trouble’.
One cannot have everything, and tax and tax planning have to take a subsidiary role, but by no means are they ignored. See, for example, the excellent inheritance tax nil rate band discretionary will trusts precedents 5, 6 and 7 which, in these days of pre-owned assets legislation, is perhaps the best form of estate planning.
The book starts logically with the explanatory background (although with plenty of precedent clauses). The chapters include:
trust terminology and style, drafting from first principles, avoiding archaic expressions, money laundering;
beneficiaries – their interests, rights and status;
trustees – conflicts, exemption clauses, powers, standard of care, appointment and retirement, voting:
trust property and perpetuity rules;
settlor and spouse exclusions, default provisions, vital and new SDLT aspects;
administrative provisions including the STEP standard provisions drafted by James Kessler himself.
Also covered are the vital aspects of the different and flexible types of trusts, ie. interest in possession, discretionary, accumulation and maintenance, charitable, bare, life assurance, pension, disabled and, vitally, will trusts.
I will let Professor David Hayton have the last word of this review, from the foreword to this seventh edition: ‘the author’s refreshingly forthright style makes the book eminently readable a well as soundly instructive’. I agree.
Reviewed by Ralph Ray in Taxation.