Drafting Trusts and Will Trusts – a Modern Approach (10th edition)

  • Author : James Kessler QC
  • Author : Leon Sartin
  • Author : Toby Harris
  • Date : May 2011
ABOUT THE REVIEWER: Toby Harris TEP is a member of STEP Norwich and Norfolk Branch and a tutor on the STEP Certificate in Will Preparation.

T his book is better than an earlier edition that I reviewed in the STEP Journal. Leon Sartin works so well with James Kessler that the text moves seamlessly between them. For every proposition, appropriate authority is quoted. The style is lively: the authors do not shrink from polemic review of the attitude of the government towards trusts and, in the footnotes, include many wry comments and testaments to human frailty as observed by the Courts. As the editor of a loose-leaf precedent book, I was suitably chastened by an extract that I quote below.

Footnote – on loose-leaf trust precedent books: ‘An abbreviated dislogy…[they] impose an immoderate burden on the author and an undue administrative burden in the office. They are expensive. One cannot comfortably open loose-leaf works in the armchair. The CD Rom will ultimately replace them.’

Who should buy this book? A new generation of will writers are getting established in their craft. The best and brightest of this generation, students on the STEP course in will writing, will find in Drafting Trusts and Will Trusts guidance on good practice, good style and tax efficiency. This book should be at the centre of their library. Reading it would help them pass!

The more established practitioner holding an earlier edition of this work, who must monitor the library budget carefully, might ask: how much has really changed? Such a reader will recognise much from earlier editions, but sections have been expanded that deal with will drafting, the administration of nil-rate band trust, and a chapter on family limited partnerships.

Look in greater detail, for example, at the chapter on perpetuities and accumulations, which sets out clear rules and recommends that old wills should be replaced, or at the very least updated by a new codicil, because the new rules apply only to wills executed on or after 6 April 2010.

The chapter on wills and care fee planning shows how at least half the value of the family home may be sheltered from care fees without undue complexity. The actual calculation of the amount of value so sheltered may well be complicated, as the worked example demonstrates, but it clearly shows the advantage to the family in employing a skilled will-drafter who has invested in this book and has taken the trouble actually to read it. Here is much sound, practical advice for the advisors of the vast majority of families, whose wealth is moderate only and is represented mainly by the family home.

At entirely the other end of the scale is the chapter on family limited partnerships. FLPs will be required by, and viable for, only the tiniest minority of clients. There is, naturally, no precedent here for an FLP, the precedents being confined to lifetime trusts and will trusts, but the text will give the average practitioner all he needs to know to cope with questions from a wealthy client about the suitability of this particular structure. He will be able to show how the structure works and to summarise the treatment for inheritance tax, capital gains tax and income tax.

The precedents themselves are as good as ever and are also on CD as usual. The material is slightly better ordered than in earlier editions. There is a neat little precedent for a pension death benefit trust that was absent from some earlier editions. The earlier precedents that centred around disposal of the nil-rate band have been updated so as to be used for an ‘untransferable nil-rate band’, defined as such. For an explanation of that term see the commentary in chapter 18, which contains many propositions, simply stated, that should guide will drafters who wish to offer families the best choice from the point of view of tax as well as distribution of the estate.

The 8th edition exhibited a few typographical errors. I could find none in the 10th, which I entirely recommend.

ISBN: 978-0-41404-2392-6
Price: GBP122.40
Publisher: Sweet and Maxwell

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