Under U.S. wills and trusts law, unlike other jurisdictions,
the intent of the decedent is a paramount consideration in the enforcement of
restrictions on the disposition and exploitation of assets after death. In other jurisdictions, courts tend to be
wary of attempts by decedents to control valuable resources after their death
because of concerns with dead hand control.
Why should the dead be able to make binding decisions on the living concerning
scarce and valuable resources? Isn’t it
better for the living to make those decisions in light of current
considerations and needs of the beneficiaries?
In the United States, courts tend to view restrictions on alienability
of property by beneficiaries not so much as dead hand control, but as
essentially conditional gifts. Absent
some other overriding public policy, courts are likely to enforce those
restrictions.
Notably, as discussed recently on this blog here, the right
of publicity is a very valuable right in the United States. Under many right of publicity statutes, it is
not just a right a celebrity has during life, but it is a right that can be
transferred at death. There is a viable and
potentially very valuable post-mortem right.
For example, California Civil Code section 3344.1 provides in part: “The
rights recognized under this section are property rights, freely transferable
or descendible, in whole or in part, by contract or by means of any trust or
any other testamentary instrument, executed before or after January 1, 1985. .
. . An action shall not be brought under this section by reason of any use of a
deceased personality's name, voice, signature, photograph, or likeness
occurring after the expiration of 70 years after the death of the deceased
personality.” Notably, the Internal
Revenue Service (tax collecting authority in the United States) is embroiled in a lawsuit concerning the valuation of Michael Jackson’s right of publicity,
among other assets of the estate. The
Internal Revenue Service has claimed “a value of $434,264,000 for Jackson's ‘image
and likeness,‘’ and Michael Jackson’s estate claimed a value of $2,105 (Notably, the Internal Revenue Service recently upped the amount of the tax liability!). As you can imagine, the difference between the tax liability based
on the two valuations is enormous. The
difference apparently rests on a disagreement about
what post-mortem activities can be used to calculate the value of the estate at
death—an apparent ambiguous question under U.S. law that this case may resolve.
Ordinarily under U.S. trust law, a trust is not published
and is usually private. However, if
there is litigation concerning a trust,
a trust may be made public. Recently,
the Robin Williams trust was published as an exhibit to litigation concerning a
family dispute about the disbursement of some personal property. The Robin Williams trust attempts to address
taxation concerns by leaving Robin Williams’ post mortem right of publicity
with his charitable foundation. This
addresses the problem that the estate may have with a huge tax burden at the
death of a celebrity that the estate may not have the liquid assets to address. From the taxation perspective, it appears
that the post mortem right is not so much a blessing, but could be a curse for
beneficiaries of the estates of celebrities.
Interestingly, the trust also includes a provision that
restricts the exploitation of the right of publicity by the charitable
foundation for 25 years from Robin Williams death. Some commentators speculate that this
provision was included in the trust to prevent the usage of Williams’ image in
product endorsements or in movies that the William’s may have disagreed with, particularly
in the age of digital media. For
example, commentators have pointed to the post-mortem usage of Paul Walker’s
digital image in the recent blockbuster Fast and Furious movie. (But, who doesn't want to see Ms. Doubtfire X?) Notably, the right of publicity in the U.S.
is often justified because it provides an incentive for people to develop
commercially valuable personas. However,
it is also sometimes justified because of a concern with the right to
privacy. In this particular case, Robin
Williams is essentially exercising a form of dead hand control to suppress the
usage of his commercially valuable right of publicity. In the U.S., I have little doubt that courts
will enforce the restriction. However,
should we enforce the restriction?
Should we allow this commercially valuable asset to lie fallow for 25
years, particularly when it could be used to benefit a charitable
foundation? Should the foundation be
able to challenge the restriction? For
sure, Williams’ intent and right to privacy should weigh heavily in the analysis. However, he is dead and the "right" trustee may be able to make decisions concerning the exploitation of his right of publicity that may be consistent with Williams' general intent.
