Book Review: A Practical Guide to The Construction & Rectification of Wills & Trust instruments
A Practical Guide to The Construction & Rectification of Wills & Trust instruments
by Edward Hewitt | ISBN 978-1-912687-20-6 | Published by Law Brief Publishing
The purpose of this book is to provide a practical guide to overcoming drafting problems as well as considering the court’s modern approach to the construction and rectification of both Wills and trust instruments.
The book contains six chapters as follows:
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Chapter 1 – makes some introductory comments around the interpretation problem facing practitioners when looking at Wills and trust instruments. It makes the distinction between construction and rectification.
Chapter 2 – examines the construction of Wills and considers when a problem might be resolved by agreement and when court action cannot be avoided.
Chapter 3 – looks at the law relating to the rectification of Wills including the relevant law and procedure with again investigating whether there can be agreement or an application to court.
Chapter 4 – deals with the construction of other trust instruments.
Chapter 5 – sets out the law, practice and procedure relating to rectification of other trust instruments.
Chapter 6 – examines the rules relating to mistake and in Hastings -Bass.
A common theme running through the book is where professional negligence is involved.
Structure & Layout
The book is organised across six logical chapters with sub-headings for ease of navigation and footnotes for references to make the reading flow that much easier. There is no index or schedule of cases, just the list of contents identifying the sub-headings within each chapter.
There are no checklists or templates for proceedings, it is not that type of book. There are examples to illustrate practical points and helpful referencing throughout.
Clarity & readability
Mr Hewitt has an easy writing style which is to be commended for what could be a difficult and dry topic. Instead, it is a book which provides clarity when trying to approach the actions which need to be taken. For example, in Chapter two he says
“.. the main concern for PRs faced with a construction problem is to ensure that before they take any step based on a particular construction they protect themselves from personal liability for devastavit, which they can do by obtaining either the binding consent of all affected beneficiaries or authorisation from the court. To get to that position, the PRs will first have to establish who the effected beneficiaries are.”
There is practical advice about potential professional negligence and how a claim for that might be run alongside the construction claim.
In each chapter the author examines approaches to reaching agreement before usefully summarising the relevant court applications and procedures.
Leading cases are succinctly summarised and applied to the arguments made and distinctions are highlighted.
Relevance to practitioners
This useful book deserves a place on both the bookshelves of contentious and non-contentious Wills and Trust practitioners. It is a welcome handbook to dip into when seeking the nub of a problem and how to approach it. There can be few Wills and Trust practitioners who have not had at least one case where construction was in point and sadly some, where rectification is necessary. I wholeheartedly recommend it to practitioners.
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