Drafting Trusts and Will Trusts - A Modern Approach (1^st Edn.)

Review by Professor J E Adams

This is a marvellous book. Page after page made this reviewer want to cheer aloud. The author proclaims, in an early passage: "The book strives for simplicity of style and simplicity of concept." In the sense in which he seems to use the phrases, he fully achieves both objectives but is perhaps in danger of being misunderstood if the sentence is read on its own and not in context. "Simplicity of concept" conceals, and rather undervalues, Mr Kessler's commendable methods of rendering technical concepts of trust law, tax law and occasionally other categories of law as simple and as straightforward as anyone could ask for. He skilfully strips away much of the mystique that has come to surround trust drafting over the decades and is never afraid to condemn time-honoured, and even revered, clauses and phrases as unnecessary or sometimes muddled. To anyone committed to the traditional, practices, a good deal of this will be radical, tending to revolutionary, but even such a person would have to acknowledge the courtesy and clarity with which many of his idols are demolished. Mr Kessler's plundering of the 1925 Acts for corroborating evidence to support his proposals is masterly.

The scheme of the book, after a helpful introductory chapter, is first a discussion of style, technical considerations and the desirable settlement structure. Next follow chapters on income clauses, interest in possession settlements, accumulation and maintenance settlements and discretionary settlements. The third section of the text covers administrative provisions, stamp duty and execution. A quarter of the text is then devoted to full precedents, bringing together the individual provisions presented and analysed in the preceding text. The index, regrettably is rather exiguous and ought to be expanded significantly in future additions. The handsome cover will perhaps prove a mistake: the constant use the book will receive from anyone who once takes to it will surely render the white cover rather grubby in time - honourably grubby, of course, but grubby all the same.

Only a few of the main themes of the text will be here mentioned. The use of a protector, to oversee the trustees' actions, and, in effect, validate them, is one salient element. The unnecessary and profoundly criticised statutory restraints on accumulations provide another. The reader must compile a further list of "goodies" for himself or herself, and a lengthy one it should prov, all well argued and remarkably convincing expositions of issues likely to arise in all save the simplest forms of settlement.

Minor criticisms are few - a certain asperity towards the Court of Protection and omission of the welfare benefit aspects of settlements for the disabled, a rather cursory treatment of trusts for sale, lightly misplaced confidence in the efficacy of section 27 Trusted Act (much less often used by trustees than by personal representatives), a dubious analysis of !in consideration of the premises" on page 4-017 (see the use of "premise" on page 4-059) and the switch of editorial statements between "the author", "we" and the lofty "this book" usages; this reviewer's list ends there. On a personal note, the reviewer would have welcomed Mr Kessler's view on "factional trustees" (see Conveyancer Precedent Form 4-11) and an explanation of why he considers the introduction of loose-leaf precents into the area of trust precedents "highly regrettable"! Typographical errors are few, though one reminded this reviewer of an old fashioned detective novel - the error is "children and remoter decedents" and the alternative title "The Case of the Sickly Heirs".

This reviewer's experience in advocating the use of modern drafting techniques over the last dozen years has been that commercial lawyers have proved the least resistant to change, followed at some distance by conveyancers and with trust and estate practitioners will in the rear. This excellent book quite removes any lingering excuse they might have for conservative insistence on their traditional practices; it demonstrates amply how they can discharge the onerous obligations they owe to their clients in contemporary language and style without falling into the errors they fear will allow from abandoning the accumulated debris of the last 150 years. The book deserves the warmest welcome and the author the deepest gratitude of the profession.

The Conveyancer

(Sweet & Maxwell)

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