Book review – Drafting Trusts and Will Trusts 15th Edition
This is a book review by Gill Steel of Drafting Trusts and Will Trusts 15th Edition by James Kessler KC and others, published by Sweet & Maxwell.
The stated aim of this book is to aid the drafter by discussing all the issues which arise in drafting settlements and Will trusts and to provide precedents. It is undoubtedly a text which practitioners turn to for drafting settlements in plain English because it does contain both many precedents and also an explanation of why particular words are used in the precedents. Its purpose is therefore not just to provide a set of precedents but a tool for understanding them.
The 15th Edition is said to contain a new chapter dealing with the drafting of co-ownership trusts of the family home and six new precedents to aid the drafter of such arrangements, including two new charges for use where a third party is making a contribution to the purchase price. However, some of these appear in the 14th Edition. New cases decided since the last edition have been digested and Chapter 7 incorporates the implications of those decisions.
Part 1 of the text contains 35 chapters on different aspects of trust drafting from first principles to execution of Wills and trust documents, trustees’ powers to co-ownership trusts of land and all things in between.
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Part 2 consists of a range of precedents covering: lifetime trusts, Will trusts, administrative provisions, NRB discretionary trusts, appointment of new trustees, co-ownership trusts and legal charges.
There are seven appendices including the text of the STEP Standard Provisions.
There are the usual tables of cases, statutory provisions and abbreviations but also, more unusually, a section on trust terminology.
A new feature of the current edition is the absence of a CD for the precedents in favour of a reference to ProView – an e-book version of the text.
Structure & Layout
Within each chapter of Part 1 of the text there are sub-headings and, to ease the flow of the text, references are made in the text to details in extensive footnotes.
The text of the precedents follows earlier editions by adopting a plain English approach.
This book is rare in that it includes both precedents and a detailed commentary on the interpretation of the trust documentation in general as well as the specific use of terms in the precedents. It also, unusually, discusses both lifetime settlements and Will trusts. The fact that this text is now on its 15th edition is testimony to the author’s desire to ensure that it is kept up to date with chancery practice.
Clarity & readability
The text and precedents are guided by the principles of simplicity and clarity. The book is therefore in readable ordinary English. It displays a passion for brevity but acknowledges that its preference for gender neutral drafting can sometimes make for longer clauses. As the text says, it is better to use a number of short sentences in preference to a single lengthy sentence.
Relevance to practitioners
The preface to the book opens with the sentence ‘Trust drafting is a professional skill’ and goes on to explain why. Whether or not a trust professional likes to work with plain English precedents this book is essential as part of the trust draftsman’s library. It does not only provide precedents but provides a guide to the interpretation of trust documentation in general, something with which a practitioner regularly needs help. It is a practical book and will resonate with practitioners who often face tough trust questions in practice.
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