Careless estate planning: how artists can lose their legal voice
By Donal Griffin, Firstlinks
When a famous person dies, particularly if they were involved in producing art of any type, the legal implications are like any death, but on steroids (or stronger). Soon after George Michael was found dead on Christmas Day 2016, different players involved in his affairs clashed. A boyfriend allegedly released some of his music on the internet.
After a musician or actor dies there is often huge demand for their work. It is estimated that the value of George Michael’s estate increased by 10% or more than $10 million after his death. Whether copyright material is released to satisfy sentimental demand or financial motives, there are winners and losers financially. This creates conflict. While the conflict is in the public eye it increases the tension, but we suggest that this conflict is there even if the person is not famous.
Enforceability of legal contracts
When someone dies, they obviously can no longer enter into legal contracts. Contracts executed by them prior to their death or pursuant to appropriate agency agreements, if properly drafted, can bind their legal estate. In order to cash in on the commercial opportunity of artistic deaths, it is important that a trusted person is able to bind the estate. That person is usually the person the appropriate court declares is their lawful executor or administrator. The word ‘lawful’ is key here because there can be competing applications to be the deceased’s legal personal representative.
There may be allegations that the person was not of sound mind when they named an executor in a will or that such an appointment was later revoked or that the person is disqualified from acting in that capacity. If the deceased does not have a will, in NSW the person with the largest interest in an estate will usually be their legal personal representative. This means that the dispute comes down to who was the deceased’s de facto spouse or which brother or sister first makes an application to the court.
There is often a perception that being the legal personal representative gives a person an advantage. It is certainly true that they can deal with the deceased’s assets but they may also have to account for same.
Sort it out in a valid will
All of this would be simpler if the deceased named people who they wanted to be their executor, and who agreed to play that role, in a valid will. David Bowie apparently named his business manager and his lawyer as his executors. However, it is understood that his lawyer has renounced so will not be the executor. We can only guess at whether this is to manage a conflict of interest.
In our experience, clients select their executor carefully to ensure that the people who step into their vacated shoes are able to work well together and are disappointed if one of those people decides not to act. It may be that the ‘check and balance’ in that case is no longer present if there is only one executor. How sure are you that you have got the combination of executors who will act for you?
Some professionals charge large fees for acting as executor. It is reported that Michael Hutchence’s estate’s legal fees were more than $670,000, leaving an insubstantial amount for the beneficiaries.
Usually, being an executor of an estate in which you are not a beneficiary is a thankless task. We currently act for two executors for a deceased alcoholic. One of their motives for acting is that the residuary beneficiary of the estate is a charity which they support. They have had to organise a funeral, pay for it (so they are owed money) and sign countless forms and submit certified copies of identification documents to banks and super funds.
The cases can be even more complicated if there are tangible and intangible assets such as copyright and contractual rights. Closer to home, Max Dupain’s Sunbaker photograph was caught up in a 1992 dispute about the distribution of his photographs and negatives between his widow and his collaborator.
Properly representing the deceased
A risk for an artist is that their executor will collude with the beneficiaries to deal with their art in a way that is contrary to the wishes of the deceased. If there is no-one acting as the conscience of the deceased, who will have a right to call ‘foul’?
The solution in many cases may be to have a ‘literary executor’ who has clear authority, for an agreed fee, to manage commercial and artistic matters for the deceased. Pending a grant of representation, this person could issue strong warnings to those misusing the deceased’s copyright and, on becoming the legal personal representative, call in the assets of the estate and manage the estate for the benefit of all of the beneficiaries. The literary executor can be answerable to third parties with the result that the wishes of the deceased, their public and their beneficiaries are best managed.