“Prrecioussss” Gifts – Estate Law and The Hobbit

December 14, 2012 Hull & Hull LLP Estate & Trust Tags: 0 Comments

As many know, today marks the theatrical release of the first of three instalments of the movie version of J.R.R. Tolkien’s classic “The Hobbit”. However, what I suspect most people do not know is that the story of The Hobbit and The Lord of the Rings may have been very different if estate lawyers had been introduced into the mix to address the situation.

One of the key events in The Hobbit (which actually only has its full impact in J.R.R. Tolkien’s larger work, The Lord of the Rings) is when the hobbit, Bilbo Baggins, finds the ring of power (“Ring”). The Ring belonged at that point, and for several hundred years prior, to the character Gollum. Bilbo takes the Ring away from Gollum under circumstances which can at best be described as questionable. Gollum asserts quite fervently that it is stolen.

Nonetheless, at the beginning of the Lord of the Rings, when Bilbo is presumed to be dead, he leaves a will bequeathing his home and the Ring to his nephew, Frodo Baggins. The following 1,000 or so pages of The Lord of the Rings deal with the adventure that ensues with respect to the Ring and in particular, the unsatisfied claim of Gollum to it.

However, had Gollum consulted with estate counsel, he need not have chased Frodo all over Mordor in order to recover the Ring. Rather, he would have the rights at law of any party who can identify that his or her property has been inappropriately included in the estate of someone who did not in fact have title to the property. 

It is axiomatic that a person who does not own an item cannot give that item to beneficiaries in his or her will or otherwise gift that item. If Gollum was able to establish in a court of law that he had clear title to the Ring, Frodo would not have been entitled to receive the Ring from Bilbo’s estate and even the best efforts of the wizard Gandalf would not have prevented the Superior Court of Justice (or its Middle Earth equivalent) from issuing an Order requiring the production or safekeeping of the Ring, during litigation, and its ultimate return to its proper owner.

While this obviously is a story which exists in the realm of fantasy, its lesson is very real. Certainly, it is worth remembering when preparing a will that a discussion should be had with a testator to confirm title to certain property which may be subject to claims by third parties (e.g. stolen artwork).   Failure to consider these ownership issues by a testator can result in estate trustees expending significant time and effort pursuing these issues post-mortem, when they likely could have more efficiently been dealt with during the testator’s life.

Of course, there are several other estate law issues to consider in the J.R.R. Tolkien tome: Did Gollum himself have any title to the Ring, given that readers will know that he acquired it through an act of violence. His mental capacity to swear the necessary affidavit for any motion or even to give instructions to counsel is also clearly an issue. It is unlikely he would stand up well to cross-examination. Did Bilbo acquire title to the Ring through adverse possession, having held the Ring for several decades without Gollum asserting his claim? Is there a limitation period issue? There is also the troublesome fact that Bilbo did not actually die before his will was read and his estate plan carried out, but rather had disappeared magically, and the event of his death (which actually happened several years later) may have to be proven or otherwise considered in Court.  What also of the claims of Sauron, the evil wizard, who created the Ring? Even if he lost title to the Ring on the battlefield (which in itself is arguable), he likely had certain proprietary intellectual property and trademark rights in the Ring, and the right to use his intellectual property was not validly licensed to any subsequent owner of the Ring, as far as we know. This could lead to some form of injunctive relief preventing its use, regardless of who was found to hold title to the Ring.

It is clear that the works of J.R.R. Tolkien are festooned with many potential legal pitfalls. As readers will know from our recent blog, J.R.R. Tolkien’s Estate itself suffers from some of these issues. Addressing all of those will have to be the topic of a future blog. Luckily, there are two more movies yet to come!

Enjoy the movie and the weekend,

Saman Jaffery

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