By Toby Harris
On 30th January 2013 Senior District Judge Waller issued a Circular which, though brief, is of fundamental value to all will writing practitioners in England and Wales. His communication showed that the second edition of the STEP Standard Provisions (“SSP2”) had been lodged with him and had been accepted by him as sufficient for the purposes of the earlier direction, made on 10th April 1995, relating to the incorporation of standard forms and clauses in wills. What this means is that, whenever SSP2 are incorporated in a will that is lodged for probate, there will be no need to lodge a print of SSP2 at the same time because the form of the Provisions has been accepted by the court.
This small change is of fundamental importance to practitioners because, until they knew that it would not be necessary to lodge a print of the provisions when applying for probate, many were reluctant to use SSP2 even though many practitioners welcomed the changes from the earlier editions of the Provisions.
So what has changed?
The first edition of the STEP Provisions was published in 1992. An overhaul was long overdue and many of the changes from the first edition to the second merely reflect legislative changes that have happened in the intervening years. There are however more fundamental changes which many practitioners may welcome.
The first is in the segregation of the Standard Provisions, numbered 1 to 13, from the Special Provisions, numbered 14 to 23. This change reflects the experience and views of senior academics and practitioners based on the experience of will writers. It reflects two opposing approaches to drafting. On the one hand, the client and his adviser may want a minimalist document that contains only those provisions that are really likely to be needed and which exclude anything which, though useful in its own right, may not be appropriate to the circumstances of the testator. The opposite, more cautious approach is to include every Provision that might be helpful, recognising that some will never actually be needed but which are included for completeness.
Each approach has it advocates, but the way that SSP2 are presented allows the “minimalists” to incorporate only the Standard Provisions whereas the draftsman who wants to go further, and whose client requires the extra provisions, can include the Standard Provisions and as many, indeed all, of the Special Provisions as he wishes.
It is hoped that the option of a condensed set of Standard Provisions will make it easier for draftsmen to explain the provisions to testators, with the result that it will be more likely that the testator will know and approve the content of the will because the draftsman has shown them the Provisions and highlighted those that are most important.
Nothing in the Circular from Senior District Judge Waller amounts to “approval” of the content of SSP2. All that has happened is that an official copy of SSP2 has been lodged with the court. However, in the minds of many practitioners there is the sense that the issue of the Circular does in a way make SSP2 “more official” than they previously were. Any document incorporating SSP2 by reference, even before 30th January 2013, was incorporating a set of provisions which, in the view of many academics, is very satisfactory and addresses many points that had concerned people about the previous edition. The announcement of the Circular is therefore really no more than a “wake up call” to practitioners that there is now no impediment to using SSP2 on a regular basis.
Practitioners will find commentary on the Provisions generally in learned texts such as “Drafting Trusts and Will Trusts” by James Kessler QC. They will find the full text and commentary in “Trusts Drafting and Precedents” published by Bloomsbury Professional. In addition to the Provisions and the official Guidance, STEP is working on the text of a “Toolkit” which is designed to help drafters of wills and trusts to get the best value out of SSP2 in future. Particulars of the STEP Toolkit will no doubt be published by STEP on their website as soon as available.
Toby Harris is a Trust and Estate Practitioner practising in Norfolk whose firm was recognised as Boutique Firm of the Year 2012 in the STEP Private Client Awards. Toby was a member of the committee that drafted SSP2 and was, with Iris Wünschmann-Lyall, the author of the Guidance Notes to SSP2.
As well as Trusts Drafting and Precedents, Toby Harris also writes Business and Agricultural Property Relief.