“Drafting Trusts in New Zealand” by James Kessler QC and Kerry Ayers, Thomson Reuters.

 The title "Drafting Trusts in New Zealand" hardly sets the world alight but the book is actually pretty good.

 It has two authors: James Kessler QC and Kerry Ayers.  Most readers of this column will know of Kerry Ayers, the respected lawyer from Christchurch. But what about James Kessler QC? 

 He’s a London barrister who specialises in tax law.  He has an impressive website and is an unashamed self-promoter.  He reports, for instance, that he is renowned for his "acumen and remarkable thoroughness of thought".

 In 1992 he wrote a book called "Drafting Trusts and Will Trusts" and it's now into it's 10th edition - a new print edition every two years for twenty years!

 "If I have the 9th edition, do I need the 10th edition?"  Mr Kessler's in-your-face answer on his web site is "Yes you do! ... The last edition is out of date".  And there are links on his website to booksellers from whom you can buy it electronically.  Instantly.

He hasn't had his book translated into other languages but he's done the next best thing.  He advertises on his website for lawyers who may be willing to adapt the book to the laws of their country to contact him.

It’s presumably as a result of this type of initiative that the book has spawned seven regional editions.  Two more are in the pipeline and he wants prospective authors in five named countries - as well as those in "any other jurisdictions" to contact him.

If he succeeds in this, the book in all its derivative adaptations may be one of the most profitable legal texts dealing with the law of Trusts.  Especially if readers can be persuaded to buy a new hard copy every two years.

The book itself contains a description of the rationale for common Trust clauses, and some not so common ones, and Mr Kessler cajoles readers to write in much simpler language than is common.

In this the book reminds me of an American text by a Mr Barry Engels, “Asset Protection Planning Guide” 2nd edition CCH, Chicago.  Mr Engels is closely involved with trust laws in a number of tax havens, and he refers to typical clauses in haven Trusts.  He explains their rationale, and tells lawyers why it’s important for their clients to have such Trusts.

Mr Engels’ name springs to mind since both he and Mr Kessler have websites that are models of the art of comprehensive self-promotion and their books appear to be an important element in their success.

Back to the book.  The Kessler/Ayers text is well written and the explanation of the rationale for clauses is sound.  Their drafting is good and their explanation for shedding common, and unnecessary, wording is sensible.

Kerry Ayers has modified the English text to suit New Zealand conditions.  Among other adaptations he has added a section on residential care subsidies.  He has also referred to 38 or so New Zealand cases.  

Ward v Ward [2010] 2 NZLR 31 – one of the most important cases in this area of law - is there but its significance is confined to a footnote.

Although the book has 380 pages, it is relatively slim.  The text is 281 pages long and there are 70 pages of precedents.

Overall it is an unpretentiously useful book and lawyers who read it will, I am sure, become better Trust lawyers.

Having co-written a text book myself, I have great sympathy for authors of legal texts, especially those have to do all their research and writing in such time as they can extract from a busy legal practice.  I therefore commend Kerry for all his work in adapting this text to the New Zealand environment.

If there is one thing that I would have liked to see in the book it is an assessment of the kind of clauses that are needed to circumvent the numerous arguments and devices that the Courts have been using to unscramble Trusts.  The judicial assault is a real threat to a large number of our Trusts.  I am to deliver a Paper to the ADLS’s 2011 “Cradle to Grave” seminar in a couple of weeks time on the many ways by which the Courts are stripping assets out of Trusts and how the Courts might be prevented from doing so.  At last count, I got to 16. 

This is serious.

I encourage Kerry to have a section on this in the next edition of “Drafting Trusts in New Zealand”.

For information about Anthony Grant, see www.anthonygrant.com

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