Book review of Lewin on Trusts 20th Edition
Published by Sweet & Maxwell | ISBN: 9780414068056
The first edition of this text was published in 1837. Then, as now, its purpose was to set out as clearly as possible the law relating to trusts. This subject has moved from being a slow-moving English law creature to an international giant which changes frequently. This edition completely reviews the text; expands to two equal volumes and introduces some new topics. Barristers Lynton Tucker, Nicholas Le Poidevin and James Brightwell are the main contributors with assistance from Thomas Fletcher, Aidan Briggs and Simon Adamyk and all must be congratulated on this upgrade to Lewin.
The authors guiding principles are that it “First should be a practical treatise on the law of trusts ….and that it should not only state the law as set out in, or settled by, statutes and cases, but also explore the areas of trust law which are not fully settled and suggest principled and practical solutions. Secondly, that it should evolve with the developments in the law and cover and enhance the treatment of topics which are of importance to the profession.”
Setting out the content of such a text is rather like suggesting a drive to infinity. There are nine parts to the text which give you a flavour for the content below:
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- Definition, classification and creation of trusts
- Foreign elements
- The trustees
- The beneficiaries and beneficial interests
- Administration of the trust property
- Proceedings and remedies
- Lawful departure from the trusts
- Trusts, Regulation and Crime
The scope of the text is wide and detailed from exploring what is a trust to looking at the impact of the EU and Brexit as well as other international elements on the law of trusts. It is pleasing to note that there is a separate chapter (16) devoted to the replacement of trustees lacking mental capacity, which has become a regular occurrence at a time when people are living longer but in a frail state.
There is also a chapter (38) on the Settled Land Act 1925. Many readers may well have never seen a Settled Land Act trust and a reminder of how these must be dealt with is useful in Part Six on the Administration of trust property.
Contentious trust work is on the rise and Part Seven is dedicated to proceedings and remedies. It should be compulsory reading for anyone deciding to take on the role of trustee as in chapter 41 it sets out the personal remedies against trustees for breach of trust.
As the authors indicate, in the 17th Edition there were a modest few paragraphs about the need for vigilance against money laundering and getting involved with trust property tainted by crime. This is now elevated to a whole part – Part Nine. Across two chapters the authors explore the recent developments with trust registration, FATCA, CRS and DAC6 – matters of importance and complexity.
Structure & Layout
For those readers familiar with the layout of the 19th edition, derivation and destination tables will assist you to find the topics you are interested in within the new layout. About one third of Volume One contains the tables of cases and statutes referred to in the text.
Within each part there are chapters and within each chapter there are numbered paragraphs and headings to ease understanding and location of the appropriate section when researching. A minor suggestion would be to use a different colour paper to mark the beginning of a fresh Part.
Clarity & readability
The text is readable and sifts through court decisions to make the principles clear. For example, take this extract on the extent of the duty of searching for data in response to a Subject Access Request under GDPR, on which there have been several court decisions:
“The data controller has an implied obligation to conduct a search for personal data in response to a subject access request. The search need only be reasonable and proportionate. To what it must be proportionate is not made clear in the GDPR, though the Court of Appeal has stated that at least part of this exercise involves comparing the ‘effort [which] will be involved in finding and supplying the information as against the benefits it might bring to the data subject’. The burden is on the data controller to show that doing more than it has done would require disproportionate effort. This will involve providing the evidence setting out the time and cost which would be involved in conducting a search. It may well be disproportionate to require the data controller to conduct searches of documents held on a back-up system. The court can order specific further searches to be carried out.”
This is a useful summary of some complex issues arising around GDPR and all the above is linked to relevant footnotes. It is however readable and succinct. That sums up the rest of the text too.
Relevance to practitioners
Any practitioner who drafts, administers or manages trusts or seeks to litigate over trusts must have access to this text. It is the leading text on the subject matter and has been referred to many times in court cases. This latest edition is a magnificent overall of a gem of legal jurisprudence and worthy of a place in any library.
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