The creative works of deceased writers, musicians and other artists can continue to generate revenue for many years after their death. We have previously blogged about the protracted fights that can emerge over the revenue generated by these works. However, the intellectual property rights of a testator can often be overlooked during the estate planning process.
It is essential for drafting solicitors to be able to knowledgably advise their clients about intellectual property issues. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law to ensure that the Will adequately addresses any possible rights the Estate may have after the testator’s death.
For example, the Will should clearly set out how royalties earned on a testator’s copyrighted work will be administered and distributed. With respect to copyrighted work in Canada, section 6 of the Copyright Act provides that copyright subsists for the lifetime of the author, the remainder of the calendar year in which the author dies, and an additional term of fifty years following the end of that calendar year. Thus, a testator’s copyrighted works can continue to generate significant revenue for many years after the testator’s death.
However, beyond ensuring that the profits earned are distributed in accordance with the testator’s wishes, a well-drafted Will can also help ensure that the testator’s artistic legacy is preserved. Given the rights and control conferred upon a beneficiary of intellectual property assets, the heirs of such works can help the testator’s work flourish and find new audiences well beyond their lifetime.
A great recent example of this is the story of Lucia Berlin, whose recent short story collection, A Manual for Cleaning Women, has topped bestseller lists and received the honour of being named one of the top ten books 2015 by the New York Times Book Review.
But, as set out in this touching memoir by one of her former students and friends, Ms. Berlin retired in 2000 and moved to a trailer park in Boulder, Colorado. She subsequently moved into a converted garage in Los Angeles in order to be closer to her son. Ms. Berlin passed away in 2004, on her 68th birthday.
More than eleven years after her death, Ms. Berlin is being heralded as a lost genius and “the greatest American writer you’ve never heard of.” Keen-eyed readers will note that many of the photographs that accompany articles about Ms. Berlin’s work are published courtesy of the “Literary Estate of Lucia Berlin LP.”
Thank you for reading.
Umair Abdul Qadir
Apart from the moral obligation to benefit family discussed in yesterday’s blog, a testator may feel an ethical obligation to benefit charity. This is another way of leaving a legacy. If the testator performed volunteer work for a specific charity, a testamentary bequest can be seen as a natural extension of a lifetime commitment to a cause.
Of course, the groundwork for a legacy may be laid outside of the testamentary context. For example, consider the inter vivos donations made by Michael DeGroote to McMaster University leaving a legacy not only of financial support but by the naming of McMaster’s business and medical schools in recognition of Mr. DeGroote’s generosity.
Testators who were generous to charities in their lifetime often will similarly wish to benefit those same charities in their Wills. Indeed, a charitable bequest in a Will to a charity to which the testator had a history of donating is useful evidence in support of the validity of a Will. Conversely, a significant charitable bequest to an entity entirely unknown to the testator may (in certain circumstances) raise a red flag.
David M. Smith – Click here for more information on David Smith.
In honour of Victoria Day, celebrated in Canada on the last Monday of May on or before May 24, and considered the first long weekend of the summer, I thought I would consider the terms of the last Will and Testament of Queen Victoria.
Queen Victoria was born on May 24, 1819, and died on January 22, 1901. She became Queen at the age of 18, and reigned as monarch for over 63 years, being the longest reigning monarch in history. She had 9 children (she was predeceased by 3 of her children), including her successor to the throne, Edward VII.
Unfortunately, very little information can be found online about Queen Victoria’s Will. However, while searching, I discovered that a legacy of sorts was recently sold at auction in Scotland. Queen Victoria’s stockings (circa 1870) were sold earlier this year for 8,000 pounds (about $12,000 CDN).
The prior owner, Mary Youings, said that her late mother gained possession of the stockings around 1910. She said that she did not know the circumstances of how her mother gained possession of the stockings. The Telegraph reported that upon Queen Victoria’s death, her undergarments and much of her wardrobe were distributed to members of the royal household.
In July, 2008, Youings sold a pair of Queen Victoria’s 50” waist bloomers for 4,500 pounds.
I hope you enjoyed your Victoria Day Weekend, and got a “leg up” on summer.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Listen to Payment of Legacies
This week on Hull on Estate and Succession Planning, Ian and Suzana discuss payment of legacies and other gifts that may be set out in a will.