Book Review: Drafting Trusts and Will Trusts by
James Kessler
Trust Quarterly Review 2009, 7(2), 43-44
Joseph Curl
It is only about two years since the 8th
edition of this book was reviewed in this journal. The fact that Drafting Trusts and Will Trusts has gone
through nine editions since its first appearance in 1992 demonstrates the
relentless stream of developments of which the practitioner must keep abreast. This 9th edition runs to 578 pages,
representing a mere 34 pages net increase compared with the 8th
edition. There remain 31 chapters. Although this work has grown considerably
since the 1st edition’s 305 pages, the fact that James Kessler has
managed to retain a reasonably concise format through these nine editions ought
not to go unrecognised among his achievements. At least part of the reason for this is that Mr Kessler takes his
own advice. In chapter three, an
element of the mischief with which this book grapples is identified:
“Drafters are constantly adding to their drafts,
but rarely deleting...In this way much material is introduced where it serves
no purpose. This book attempts to step back from that process.”
Redundant material has been pruned and what remains
has been updated and where necessary augmented. So what changes can the reader expect since last time? The immediate change since the 8th edition is
that Mr Kessler has acquired a collaborator. Leon Sartin joins the project as co-author for the first time. As to structure, this 9th edition
is familiar looking in its chapter and sub‑heading layout.
The most significant alterations to the book’s
content result from changes brought about by the Finance Act 2008. As a
consequence of this legislation, there is a wholly new chapter 18 ("Will
drafting after the Finance Act 2008”). The 25 pages of this new chapter 18 firstly identify the reforms
before delving in depth into the issues that arise from them. There are pages of practical advice and
various possible scenarios set out and explored in detail. The usefulness of up-to-the-minute guidance
on such recent reforms is impossible to doubt. A new chapter 19 (“Administration of nil rate band trusts”)
draws most of its material (with appropriate amendments) from the former
chapter 29 (“Nil rate band trusts”). It would appear that the decision was taken to move this chapter
from towards the end of the work to closer to the middle to enable it to be
read alongside the new material on the Finance Act 2008, owing to the
Act’s considerable impact on nil-rate band (NRB) trusts.
Indeed, Kessler and Sartin assert that “NRB
trusts are now redundant in most cases” owing to the introduction by
the Finance Act 2008 of transferable nil-rate bands between spouses. This is regarded by the authors as a cause
for some celebration because it represents the adoption of a course proposed in
earlier editions of this book. The
previous edition of this work asserted that:
“There is a simple reform which would make NRB
trusts unnecessary: a transferable nil rate band. That is, if H by his will gives his entire estate to W (not using
his nil rate band) W should on her death enjoy the unused nil rate band of H in
addition to her own.”
This is exactly what the Finance Act 2008
has done. In this new 9th edition,
Kessler and Sartin note that this is “a reform which this book advocated for many
years” and conclude that it
“is very welcome”.
A further noticeable alteration to structure is the
disappearance of what was the 8th edition’s chapter 27 (“Stamp
Duty and SDLT”). This is now
relegated to a mere sub‑heading within the new chapter 29 (“Execution
of wills and trust deeds”). Once
again, this is a consequence of changes introduced by the Finance Act 2008.
It provides a further instance of the adoption by the legislature
of reforms proposed in Mr Kessler’s earlier editions. In the 8th edition, the stand-alone chapter “Stamp Duty and SDLT”
ran to eight pages. The whole stamp
duty topic was described in that edition as “frivolous and vexatious”
with rules that were “bizarre and obscure”. Now the five-pound fixed duty has been abolished, which the
authors note in the new one‑page “Stamp Duty and SDLT” section is
another step that “was advocated by this book for many years”.
The precedents contained in Part 2 are largely as
before, with a few modifications. Most
noticeably, there are three completely new precedents concerning NRB
appointments. As before, there is a
useful CD-ROM included, containing the precedents. This book is noted for its precedents because of James Kessler’s
innovative and iconoclastic style. He
has long set himself against the verbiage and prolixity of embedded drafting
conventions. There is a risk with any
book of this kind that the author may seem to like modernising more than is
strictly necessary, but it would be wrong to characterise Kessler as
relentlessly pursuing novelty for its own sake. Instead, the approach of this work is to strip back to first
principles and undertake a forensic analysis of what is there and why it is
there. Unthinking inclusion of
boilerplate clauses that are there because “that’s what I’ve always done”
is emphatically rejected. The authors
explain that:
“Whenever common forms are omitted, an attempt is
made to give the basis and justification why such forms or expressions are
considered to be unnecessary or otiose. Few questions are so difficult to prove as those to which the
answer is obvious; sometimes the reasoning must end in an appeal to
self-evidence.”
Although principally a book about drafting trust
documents, this work goes further than that. This is a book about the importance of style in legal writing. It has become a part of the wider movement
for clarity and intelligibility in drafting. Kessler has strong views about this subject and a
breadth of learning that goes beyond the immediate matter in hand. This is not simply a matter of
surfaces. The authors argue that:
“although literary style should not - legally -
matter, it is a fact that where style is poor, more serious errors are often
found.”
This wider outlook comes through in the array of
footnotes and unusual quotations that remain on-point while illuminating and
contextualising a wider debate. There
is the right balance of concision within the work itself and signposting of
sources for further research. The
authors seem to have read everything, so the reader does not have to. Should the reader be inclined to delve
further, however, the footnotes will tell that reader exactly where to look. I would in particular commend chapter 3 (“Style”)
to anyone interested in the relationship between law and language, whether that
person wants to draft a trust or not. As a practitioner of relatively recent call, this part of the book
was for me an entertaining and eminently readable account of attempts to
modernise legal language. To someone brought
up exclusively under the Civil Procedure Rules (CPR), this was instructive and
useful.
The importance of style infuses all aspects of this
book. Kessler’s own prose is in accord
with his ideas about how legal documents should be approached. That style is pithy and spare. I particularly enjoyed some of the chapter
sub-headings, which leave the reader in no doubt what they are about and do not
mince words (or waste them either): “Does drafting matter?”, “Too
much”, “Profligacy”, “Useless recitals”, “Caution! Word
processor at work” and so on. That
said, for a work so forthright and lacking in euphemism, it was amusing to see
that the Honourable Mr Justice Hayton’s foreword (originally written for the 7th
edition) appears in word-for-word identical form, save that “drafter”
has received the PC treatment and is now “draftsperson”. Similarly, the section that in the 8th
edition was given the unabashed title “Artificial fertilization” has now
been rebranded as the altogether more coy “Assisted reproduction”.
Easy
shots aside, what such obvious micro‑management of the text between
editions shows is the degree of thought that has gone into this book and the
level of deliberation that has gone into the precise choice of words used.
It would be possible for a book to be written with
this degree of learning, scholarship and practical expertise but nevertheless
to be a dull and arid affair. Luckily
that is not the case here. What
elevates this book above the ordinary is the erudition of the authors and their
obvious passion for the task in hand. There
can be little doubt that they are men on a mission and their enthusiasm for the
project is evident throughout this impressive work.
