Drafting Trusts and Will Trusts: A Modern Approach, 6th ed.

• Author: Smith, Lionel
• Position: Book Review

James Kessler, Drafting Trusts and Will Trusts: A Modern Approach, 6th ed. (London: Sweet & Maxwell, 2002). Pp. iv, 470 plus CD-ROM.

James Kessler & Fiona Hunter, Drafting Trusts and Will Trusts in Canada (Markham: LexisNexis Butterworths, 2003). Pp. xi, 380 plus CD-ROM.

Drafting Trusts and Will Trusts is an established guide for practitioners. In the preface to the sixth edition, James Kessler mentions his interest in co-authoring a series of spin-off trust drafting books adapted to other trust jurisdictions. The Canadian version of the text is one example; James Kessler and Sheena Grattan have written Drafting Trusts and Will Trusts in Northern Ireland; (1) and forthcoming is Drafting Scottish Trusts and Will Trusts by James Kessler et al. (2)

Both of these books include precedents, in print and on CD-ROM, with suitable warnings in the final chapter against the careless use of such resources. The books are generally similar to one another and it seems clear that the "parent" English work was the template from which the other was written. This makes sense, given that the trust law of common law Canada is very close to that of England and Wales. The Canadian text, however, includes many references to Canadian texts and cases, and substantial original text where necessary. This is most noticeably the case in relation to perpetuities, and in relation to income-tax-driven structures such as those which the Income Tax Act calls "alter ego trusts," "joint spousal trusts," and "common-law partner trusts," (3) each of which rightly gets its own treatment in the Canadian book. Conversely, the Canadian book lacks the chapters in the English text on "interest in possession trusts" and "accumulation and maintenance trusts"; trusts fitting those labels can certainly be created in Canada, but in England the labels refer to taxation consequences. These differences confirm what every trust teacher knows but most prefer to ignore: that trust drafting is enormously influenced by taxation law.

These books take a decidedly progressive approach to drafting. The first three chapters, substantially the same in each book, are called "First Principles", "Style", and "Principles of Interpreting Trust Documents". Their aim is to convince drafters (and perhaps judges too) to abandon "the old intellectual baggage" (4) surrounding the construction of legal documents and, it would seem to follow, their drafting. The discussion here is humorous and sophisticated.

The books are very much in favour of trustee discretion, and there has indeed been an evolution in this...