Drafting Trusts and Will Trusts in Scotland: A Modern Approach
James Kessler’s seminal work Drafting Trusts and Will Trusts: A Modern Approach is now in its 11th edition, and has encompassed its tenth jurisdiction with the publication of this Scottish version, co-written with Glasgow-based STEP member William Grant TEP.
I know I am one of many trust lawyers in Scotland who have used the various English and Welsh editions enthusiastically but has had to ‘translate’ not just the language, but often the underlying concepts to meet Scottish requirements. Although Scotland and England share a tax system, which inevitably shapes the trust laws of both jurisdictions, the legal systems are distinct, developing from two distinct traditions – Scotland from civil law, and England from common law. The preface to this book quotes earlier Scottish legal writers, who make the comparison of two computers whose screens look similar and which work in similar ways but which have completely different operating systems.
Thus, while Scottish practitioners may have been tempted simply to ‘put a kilt on’ a trust style to convert it from the English version (although there it would be called a ‘precedent’ – see what I mean?), this is unlikely to have provided a complete or correct solution. This Scottish edition is therefore very welcome. This is all the more the case because there have been very few recent (i.e. of the past 50 years) books on the law and practice of trusts in Scotland, and none of them have actually included practical advice on how to draft trusts – far less coherent styles.
The format of the book follows very closely that of the English and other existing editions (and is none the worse for that), so those who have already used the English edition will know where to look for each topic. If there is a downside to this, it is that some features of English trusts appear in the book that are not commonly encountered in Scotland.
The book includes over 100 pages of styles (in print and on CD) but arguably too much of this is taken up with variations on the nil-rate band discretionary will trust (including the ‘to transfer or not to transfer’ dilemma), while there could have been a few more refinements for lifetime trusts, e.g. there is no style of bare trust (though there is one in the text) or of a trust for a disabled person.
The authors consign to history a few distinctive terms of Scottish trust law, such as truster (settlor), liferent (right to income) and testamentary (will) trust, but they explain why they have decided to do this and their justifications are valid and helpful.
This book has appeared at what may be a watershed time for trusts and estate planning in Scotland. The Scottish Law Commission (SLC) is scheduled to publish this summer a final report and draft Bill following on from its extensive reviews and recommendations on the law of trusts. Disappointingly, none of the SLC proposals have yet appeared in legislative form but it is to be hoped that the Scottish Parliament will find time to give the Commission’s work the recognition it deserves by enacting a new Scottish law of trusts – most of the present statute law is almost 100 years old. James Kessler and William Grant have already committed to producing a second edition when this happens.
The styles follow a plain English policy, and the whole book is thoroughly readable. A copy should be in the personal library of every practitioner who is ever asked to draft or advise on a trust. The true success of the Scottish edition will be evident if more advisors than have previously done so are prepared to consider trusts as part of their estate-planning toolkit.
By James Kessler QC TEP and William Grant TEP
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