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Where Taxpayers and Advisers Meet
Book Review Drafting Trusts and Will Trusts: A Modern Approach (15th Edition)
10/07/2023, by Mark McLaughlin CTA (Fellow) ATT TEP, Tax Articles - Inheritance Tax, IHT, Trusts & Estates, Capital Taxes
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By James Kessler QC, Amy Berry, James Davies, Michael Ranson, and Chris de Beneducci

Reviewed by Mark McLaughlin CTA (Fellow) ATT (Fellow) TEP
Consultant Editor, and co-author of Ray & McLaughlin’s Practical IHT Planning

Introduction

A key sign of a popular and respected technical work is its longevity. Now in its 15th Edition (the first was in 1992), the publishers, Sweet & Maxwell, describe Drafting Trusts and Will Trusts:A Modern Approach as “the main practitioner text in its field”.

As a tax specialist but non-lawyer, my interest in this title is not in drafting trusts and will trusts, but in their tax implications. The Preface points out: “Topics of trust and tax law are discussed so far as they impinge upon trust drafting”. The Preface is followed by a note to the lay reader, which states: “This book is not intended as a self-help guide, and is addressed to professional practitioners, but is readable for a lay person”. It is a testament to the skill of the authors that difficult legal concepts are explained in such a way as to make them comprehensible to those wishing to research the subject with a view to taking more control over their legal affairs.  

 For the 15th Edition, James Kessler KC is ably supported by a new and impressive editorial team. James Kessler is a well-known and highly respected practitioner in his field of tax and chancery law. As an author and co-author of technical books myself (in the field of taxation), I know (often from painful experience!) how difficult it can be to articulate complex legislation and explain its effects to readers in a succinct manner that can be readily understood and applied in practice. James Kessler’s publications are synonymous with clarity and precision, which is undoubtedly a major selling point to busy practitioners.

Contents

Drafting Trusts and Will Trusts: A Modern Approach comprises 35 Chapters (under Part 1 – Trust Drafting) plus numerous precedents (in Part 2, including lifetime trusts, will trusts, administrative provisions, and supplemental documentation for nil rate band discretionary trusts), together with seven Appendices. The contents are spread over 719 pages.

The early chapters provide a relatively gentle introduction to the subject matter of the book, outlining the Finance Act 1986 reforms to the inheritance tax treatment of trusts, followed by chapters on first principles, drafting style, and principles of interpreting trust documents. Subjects covered in subsequent chapters include general principles of a trust, interest in possession trusts, discretionary trusts, types of will trust, wills and care fee planning, administrative provisions, bare trusts, trusts for disabled beneficiaries, appointment and retirement of trustees, and many more.

The 15th edition features a new chapter dealing with the drafting of co-ownership trusts of the family home, plus six new precedents to aid the drafter of such arrangements.     

As a tax specialist, the content that caught my eye included some useful commentary on nil rate bands in the chapter on will drafting, the administration of nil rate band trusts, and trusts of life insurance policies and pension death benefits (which can be efficient for inheritance tax planning). There are also appendices with excellent tax analyses of nil rate band debt and charge schemes, tax on payment of index-linked lump sum, and capital gains tax private residence relief where a share of the family home is held in trust.   

The printed book was accompanied in previous editions by a CD of the precedent clauses and documents. For the 15th edition, the precedents are instead made available digitally on Proview, the Thomson Reuters eReader platform.

The publishers, Sweet & Maxwell, state (quite accurately, in my experience): “With an emphasis on clear English and ease of understanding, Drafting Trusts and Will Trusts: A Modern Approach has won a reputation for bringing a fresh approach to creating documents”.

The Verdict

My favourite professional publications have always been written in plain English, have been relatively straightforward to comprehend, and practical enough apply in my everyday work. The guidance and valuable precedents in Drafting Trusts and Will Trusts: A Modern Approach surely make it a ‘must have’ on the bookshelves of professionals who undertake will and trust drafting to any significant degree. It is highly recommended.

Cost and How To Order

Drafting Trusts and Will Trusts: A Modern Approach costs £140. The publication is available in eBook format and in print. The book can be ordered from Sweet & Maxwell online: www.sweetandmaxwell.co.uk/Product/Trusts-Law/Drafting-Trusts-and-Will-Trusts/Hardback/43131218.

About The Author

Mark McLaughlin is a Fellow of the Chartered Institute of Taxation, a Fellow of the Association of Taxation Technicians, and a member of the Society of Trust and Estate Practitioners. From January 1998 until December 2018, Mark was a consultant in his own tax practice, Mark McLaughlin Associates, which provided tax consultancy and support services to professional firms throughout the UK.

He is a member of the Chartered Institute of Taxation’s Capital Gains Tax & Investment Income and Succession Taxes Sub-Committees.

Mark is editor and a co-author of HMRC Investigations Handbook (Bloomsbury Professional).

Mark is Chief Contributor to McLaughlin’s Tax Case Review, a monthly journal published by Tax Insider.

Mark is the Editor of the Core Tax Annuals (Bloomsbury Professional), and is a co-author of the ‘Inheritance Tax’ Annuals (Bloomsbury Professional).

Mark is Editor and a co-author of ‘Tax Planning’ (Bloomsbury Professional).

He is a co-author of ‘Ray & McLaughlin’s Practical IHT Planning’ (Bloomsbury Professional)

Mark is a Consultant Editor with Bloomsbury Professional, and co-author of ‘Incorporating and Disincorporating a Business’.

Mark has also written numerous articles for professional publications, including ‘Taxation’, ‘Tax Adviser’, ‘Tolley’s Practical Tax Newsletter’ and ‘Tax Journal’.

Mark is a Director of Tax Insider, and Editor of Tax Insider, Property Tax Insider and Business Tax Insider, which are monthly publications aimed at providing tax tips and tax saving ideas for taxpayers and professional advisers. He is also Editor of Tax Insider Professional, a monthly publication for professional practitioners.

Mark is also a tax lecturer, and has featured in online tax lectures for Tolley Seminars Online.

Mark co-founded TaxationWeb (www.taxationweb.co.uk) in 2002.

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