Sheena Grattan has become almost a one woman industry in producing practical books for practitioners in Northern Ireland in the field of administration and trust law. Her book "Succession Law in Northern Ireland" is now a standard reference book and more recently she has produced a very helpful commentary on the Trustee Act (Northern Ireland) 2001. She has a real understanding (unfortunately not always shared by those now writing on legal matters in Northern Ireland) of what is useful to the legal practitioner in the real world.

Her latest book is a joint production with James Kessler Q.C., and as stated in the preface "is essentially the sixth edition of James Kessler’s Drafting Trusts and Will Trusts adapted in its entirety to take account of Northern Ireland law (although the opportunity has been taken where appropriate to include revisions which will appear in the next edition of the English version). The most important differences between the two jurisdictions relate to the accumulation period (permitting much greater brevity and simplicity in Northern Ireland) and the treatment of trusts of land (where the law in Northern Ireland is long overdue reform) but there are many other differences which can be significant in practice.

James Kessler’s book has long been admired by practitioners in the field of trusts and wills. The writer has used some of his precedents, (with adaptation to Northern Ireland) but always with a certain amount of trepidation, given some of the important differences between the two jurisdictions. Invariably questions arose: Have I got the accumulation period right? Do I need a trust for sale? Are the administrative powers usually given to trustees in England adequate in Northern Ireland? All such doubts, and many others, are here resolved and the Northern Ireland practitioner can use the precedents with confidence, while always bearing in mind the authors’ warning that:

"although this book contains many precedents, we hope to persuade the reader to regard standard drafts with an independent eye; as suggestion and not a solution. The solicitor does not serve his client well if he produces to him for execution any standard draft without consideration of individual circumstances."

The text commences with chapters on the first principles of trust law and drafting. James Kessler has always been a proponent of plain English in legal documents and both the text and the precedents follow this principle admirably. The days should long be over when lawyers delighted in the length and obscurity of their documents and this is not merely a matter of stylistic preference. To quote the authors again:

"dense and obscure drafting carries a heavier price than may be realised. The more complex a draft, the more professional time must be spent studying it in order to ascertain the meaning, and the greater the chance of error escaping observation."

Sadly, the aim of simplicity of style and concept has still not been embraced universally in Northern Ireland. One of my colleagues recently showed me a draft lease of a shop in a shopping centre which ran to well over 100 pages (every word of which the lessee’s solicitors has to read and consider carefully) and which could not be followed at all without continually turning back and forth to different parts of the document. Such "kitchen sink" drafting is something of which no-one should be proud.

Subsequent chapters of the book cover questions relating to beneficiaries, trustees, trustees’ powers, trust property, the rule against perpetuities, the general provisions of a trust and some of the more complex questions which arise in drafting trust documents. There are also chapters relating to all the different types of trust which are most likely to be encountered by practitioners, including accumulation and maintenance trusts, discretionary trusts, interest in possession trusts and – notably – will trusts. More clients these days are likely to require well drafted will trusts than lifetime settlements, and it is extremely helpful that both the text and the precedents give them prominence.

More specialised types of trust are also covered in some detail, including trusts of life insurance policies, trusts of death benefits, charitable trusts, trusts of damages and trusts for disabled beneficiaries. There is also a helpful chapter on stamp duty which takes into account the recent introduction of stamp duty land tax. The complexity of the rules relating to the residual stamp duty applying to trust documents is out of all proportion to the amounts involved (usually either £5 or nil) and one can only concur with the authors when they say at the end of the chapter that "all readers who have followed the text to this point will agree that these rules should be reviewed and (apart from the SDLT self certificate) abolished".

The book concludes with many helpful precedents of both lifetime trusts and will trusts. As already indicated, they are notable for their clarity of style and concept. They incorporate, where appropriate, the standard provisions of the Society of Trust and Estate Practitioners (Northern Ireland version) which enables the draftsman to avoid, inter alia, setting out most of the usual administrative powers in full. When the book went to press it carried the warning that the STEP standard provisions for Northern Ireland had not yet been approved for use by the Society, but that approval has now been given, so that the practitioner may incorporate the standard provisions with equanimity. Better still, the book is accompanied by a CD Rom which includes all the precedents in the book and also the standard STEP provisions. It also takes into account the provisions of the Trustee Act (Northern Ireland) 2001.

I have no hesitation in saying that any practitioner who is likely ever to have to draft either a lifetime trust or a will trust should immediately invest in a coy of this book. Larger offices should have multiple copies, for they are certain to be in constant use and your colleagues will guard their copies jealously. This is likely to be a standard text in Northern Ireland for years to come and we should all be extremely grateful to James Kessler QC and Sheena Grattan for their outstanding contribution to the literature on the topic in Northern Ireland.

Alan Hewitt

L’Estrange & Brett

Journal of the Law Society of Northern Ireland April 2004