We promised to talk about a couple of terms that keep popping up in our research. Remainderman and tail are terms used in real estate transfers. For our purposes, of course, the transfers are made in wills or trusts.
]]> Black's Law Dictionary defines a remainderman as "a person who holds or is entitled to receive a remainder." So we turn to remainder, which is defined as "a future interest arising in a third person -- that is, someone other than the estate's creator, its initial holder, or the heirs of either -- who is intended to take after the natural termination of the preceding estate."It works like this. In "Downton Abbey," think about the Earl of Grantham's father, now dead, the Earl himself and the Earl's oldest daughter, Mary. If the old Earl had left the estate to his son and, upon his son's death, to Mary, Mary would be the remainderman. She cannot claim her remainder until her father dies.
Note that Mary's father has only a life interest in the estate. The estate is not his to deed away or to leave to anyone else in the family. He gets to live there, and then it goes to Mary.
Note also that it stops with Mary. When her father dies, the state is Mary's outright. She can sell it to Wal-Mart or leave it to her dog.
This is where the tail comes in -- in our next post.
Source: Black's Law Dictionary (9th ed. 2009), via Westlaw
]]>At first, our research took us to a discussion of the Rule in Shelley's Case. We found a Florida case from 1860 that provides some valuable insight into the rule. The parties are arguing about their father's estate and whether the share intended for a deceased child should be divided between the surviving children. As is almost always true in probate cases, the court must read the will and determine what the testator's intent was at the time he executed the will.
]]> The parties discuss at great length whether the Rule in Shelley's Case should apply. One party explains why it should not:[T]he rule in "Shelley's case" is so exceedingly technical and artificial in its nature, that whenever there has been any, the slightest, difference of phraseology which would justify a departure from the rule, the Judges have seized upon the opportunity of deviating from it in order to arrive at the real intention of the testator.
This is the kind of passage legal researchers seize on. Yes, the rule exists, but no one ever follows it; in fact, courts will do anything not to have to apply the rule. Read this, and you can practically hear law students everywhere say, "Dude."
So, heck, if courts won't bother with Shelley's case, neither will we. We do, however, have to explain what a "tail" is and what a "remainderman" is.
Contrary to our promise last time, we will do that in our next post.
Source: Russ v. Russ, 9 Fla. 105, 1860 WL 2047 (Fla. 1860), via Westlaw
]]>An important thing to remember about probate and estate planning is that much of the law is actually property law. It's not called "estate" planning for nothing, right? Probate law is about passing real property and personal property on after we die. When it comes to real estate, all those real estate terms creep in -- terms that, sadly, don't elicit visions of women playing lawn tennis or entire house parties riding to the hunt.
]]> When we got interested in the particulars of entailment, we did a little digging. The research turned up cases and statutes and articles that discussed the Rule in Shelley's Case and the rule against perpetuities. Shelley's case has nothing to do with Percy Bysshe or Mary Shelley. (More's the pity.)Both rules have to do with transferring real estate. The Rule in Shelley's Case, according to the Restatement (Second) of Property: Donative Transfers § 30.1:
... has been abolished prospectively in practically all States and should be abolished prospectively by judicial decision to the extent it has not been abolished prospectively by statute.
"Ahh!" you are saying. Well, it only gets better from there.
The rule talks about fee simple and remaindermen and freehold estates. But the Restatement also includes a little history about the Rule and heirs and fee tails, aka entails.
And, yes, we'll get into that more in our next post.
Source: Restatement (Second) of Property: Donative Transfers § 30.1, via Westlaw
]]>To get started, let's think about Vizcaya right here in Miami. The estate -- the house and outbuildings, the farm and everything else -- covered 180 acres on both sides of Miami Avenue in its heyday. Imagine that this house had been built centuries before, and the same family, the Deerings, had owned the place since then.
]]> Generation after generation, the estate passed from eldest Deering son to eldest Deering son. To keep the estate together -- because land was power, way back when -- only the eldest sons inherited. Younger sons were given a stipend and had to make their own way, often in the army or the clergy; if the eldest were to die, the second son would take his place as heir.Any daughters (with very few exceptions) were not included in the lines of succession. They were married off, after their father or brother had negotiated a reasonable dowry that would satisfy the groom-to-be. The greater the estate, the more eligible the daughter.
Not only did this not happen at Vizcaya, it could not have happened in Florida. The laws of inheritance prohibit that generation to generation to generation estate plan.
How? Well, we'll explain in our next post.
Source: Vizcaya Museum & Gardens website, accessed Jan. 25, 2012
]]>If he had spelled out his wishes in an estate plan, there would probably be no dispute. But he didn't. Without a will, his children, who are managing his estate, have to make decisions about Dr. King's legacy based on their own instincts -- just as the woman the estate is suing has to follow her own understanding of events.
]]> So a court will have to decide what Dr. King intended when he gave his friend or his secretary or his friend/secretary the documents in question. It would certainly be easier if he'd left a will or established a trust or even just written a note on a napkin -- "Here you go! I want you to have these letters and speeches, and I hereby cede all claims to them now and in the future; please consider them a gift(s)" -- a really big napkin, perhaps.That's not what happened, though. The defendant, the woman's son, has filed a motion to dismiss. The estate says dismissal is inappropriate, because they haven't had a chance to depose the son yet. The court will review the evidence and determine how to proceed.
And then, perhaps, we can see the documents and have a greater appreciation for Dr. King's gifts to us all.
Source: Forbes, "MLK Heirs Challenge Gifts To His 86-Year-Old Former Secretary," Danielle and Andy Mayoras, Dec. 12, 2011
]]>It's a hard job, certainly, and it may be harder yet on the people who have papers that the corporation believes the estate should have. The most recent instance involves the woman who served as the civil rights leader's personal secretary in the 1950s. Also a lifelong friend to the Kings, she says Dr. King gave her important documents over the years as gifts.
]]> The corporation would like proof. As it always seems to happen in cases like this, she has only her word to back up her claim. She says he handed her the documents at random times, telling her, "This is for you."These documents had actually disappeared for years. Shortly after Dr. King's assassination, this woman's husband, also a friend of the family, asked his employer, a university, to store them. They remained there until 2007, when a university worker stumbled across them. The university handed them over to the couple's son, and a local paper ran a story about the find.
That article tipped off the estate that some important documents were out there. (One is a letter to Dr. King from Rosa Parks.) The estate sued to get them back.
We'll finish this up in our next post.
Source: Forbes, "MLK Heirs Challenge Gifts To His 86-Year-Old Former Secretary," Danielle and Andy Mayoras, Dec. 12, 2011
]]>Dr. King's children argued over how to manage his assets until they formed a corporation to handle his estate. The children proceeded to argue about how to manage the corporation. When the air cleared, though, the corporation had a solid grip on Dr. King's estate and his legacy.
]]> Part of managing a great person's legacy is determining what is important. You look for the best way to tell the story, but only after you've decided which story to tell. Sometimes the little things don't matter, and sometimes they are all that matters. This is a task that takes thought and preparation and time and patience -- and, at times, a squabble or two.Dr. King was a powerful speaker, certainly, but he was also a powerful writer. And his writings have been the subject of more than one lawsuit filed by the estate.
During the 1950s, Dr. King had a personal secretary. She and her husband were friends with the Kings, and they went back a ways. As his assistant, she did more than type and sort mail. She helped with research; she edited his speeches; she wrote letters on his behalf. During their time together, she says now, Dr. King gave her some of those documents.
The way she explains it, Dr. King didn't hand them over all at once. Every so often, he would give her a document -- a letter from Rosa Parks, for example -- with a simple, "This is for you." Never once did he ask for them back. She considered them a gift.
The estate does not agree. We'll explain more in our next post.
Source: Forbes, "MLK Heirs Challenge Gifts To His 86-Year-Old Former Secretary," Danielle and Andy Mayoras, Dec. 12, 2011
]]>The current generation, mostly nephews and great-nephews, is facing an interesting challenge, though. The rights to many of the Gershwins' songs and musicals will expire soon. That would mean a drop in royalties, but, the heirs argue, it would also mean that they would lose control of the Gershwins' legacy.
]]> They have met the challenge by taking an increasingly active role in reworking the old standards. Their latest foray into the theater world is a reworking of the brothers' American opera, "Porgy and Bess." (The show opened recently to warm reviews.)To hold onto the copyright, the heirs -- who, according to the New York Times, wield enormous power -- rebranded the show as "The Gershwins' Porgy and Bess." That done, they went to work on finding a team of partners to trim the show from its original four hours and to update it into a more modern musical.
The Times notes that this season has more "estate-driven" shows than any season in the past. The Gershwin heirs are joined by the Rogers & Hammerstein Organization and Alan J. Lerner's daughter in steering legacy properties back to the stage, and back into profit. The Times also notes that this generation of Broadway heirs is more entrepreneurial and a bit more aggressive in preserving the artists' works.
This is not a generation of anonymous "angels." Heirs are front and center as restaged or reworked shows make their ways to opening nights.
Not that there's anything wrong with that. Audiences are more and more drawn to familiar shows like "Oklahoma" and "Cinderella." With the new "The Gershwins' Porgy and Bess," the producers and heirs hope to have a show that can be staged and restaged and restaged again for years, even generations, to come -- and it ain't necessarily for the money.
Source: New York Times, "The Songs Remain the Same, but Broadway Heirs Call the Shots," Patrick Healy, Jan. 9, 2012
]]>The story starts with Paul Mellon, an heir to the Mellon Bank fortune and a horse enthusiast. During his lifetime, he was devoted to the welfare of horses, especially racehorses. At his death, many organizations related to horses, jockeys and racing benefitted handsomely -- in the late '50s, Fortune magazine estimated he was worth between $400 and $700 million.
]]> One beneficiary was the Thoroughbred Retirement Foundation. He left a $7 million endowment for the foundation that is controlled by the co-executors of his estate.The foundation has sued one of the executors individually as well as in his capacity as executor of the estate. The man stands accused of slandering and libeling the organization, and not just in the papers. According to the plaintiffs, the man published "false and defamatory allegations of impropriety" to the organization's auditors, state officials and the industry.
The complaint suggests that the disagreement started as a "well-intentioned effort" of the co-executors to become more involved in foundation operations. At some point, that effort turned into a power struggle, with the defendant trying to take over from the organization's board and officers.
The foundation has been around for about 30 years. Its mission is "to save thoroughbred horses no longer able to compete on the racetrack from possible neglect, abuse and slaughter," and it's been successful. Currently, the foundation oversees the care of 1,100 horses nationwide.
Mellon's endowment is not the sole source of funding, and that's one reason the foundation is suing. The executor's negative comments have compromised the organization's fundraising campaigns. Any shortfall will inevitably affect the welfare of the horses -- undermining the purpose of the endowment.
It's an interesting case, because, for us, it raises questions about the role of an executor and the challenges of managing charitable bequests. It makes us wonder if the endowment was the right avenue for Mellon to follow, and to think about how important it is to choose the right executor for an estate of any size.
Source: The Saratogian, "Thoroughbred Retirement Foundation sues Paul Mellon Estate alleging campaign to undermine board," Paul Post, Jan. 7, 2012
]]>As we mentioned, Marley may have died in Florida, but his ties to Jamaica were always strong. So strong, in fact, that he maintained his Jamaican citizenship -- a fact that added another wrinkle to figuring out who would manage his estate. Jamaica's laws of intestacy were not as generous as Florida's, and his advisers decided to prepare an estate plan after Marley's death that his widow then signed.
]]> Initially, we were intrigued by the court documents in a current suit that stated that Marley's widow had "common law" rights to his image, his name and so forth. We have finally arrived at how that came to be.The Jamaican court cleared up the mess that was caused by the falsified will and removed Marley's widow from her post as administrator of the estate. Still, the matter of who had which rights needed to be addressed.
Enter the Jamaican Supreme Court. The Court decided -- about 10 years after Marley's death -- that the singers' heirs had the exclusive right to use his name, likeness and image in commerce. His heirs, of course, were his widow and his many children. With that right to use came the right to stop others from profiting from Marley's name, image or likeness.
Which brings us back to the heirs' current claim against Marley's half-brother, who has long used the singer's name, image or likeness to promote a Miami music festival and a restaurant in Jamaica, among other things. What's odd about the suit is that some of Marley's children are actually performing at the festival, as they have done for years.
But his brother's mistake, it seems, was to file a copyright application that included Marley's name. The singer's heirs say they already own it.
Hmmm.
Source: Forbes.com, "Are Bob Marley's Heirs Destroying His Legacy?" Danielle and Andy Mayoras, Dec. 5, 2011
]]>While Marley died in Florida, he was still a Jamaican citizen, so the intestacy laws of that country applied -- and those laws weren't as favorable to his widow as Florida's laws would have been. So two of his advisers took matters into their own hands.
]]> They developed an estate plan for Marley that would have transferred a good deal of the singer's corporate holdings, money and royalties to his widow. Most estate planning attorneys will advise against this, because it's illegal. These advisers had Marley's widow sign Marley's name to multiple documents; someone then back-dated the documents to just before Marley's death.Of course they were caught, and the first lawsuits for the estate began. The advisers were found guilty of a RICO conspiracy, fraud and a number of other crimes. (RICO is the law that covers criminal organizations. The Mafia is prosecuted under RICO.) Marley's widow admitted that she'd been involved, but she said she was acting on the advice of Marley's attorney. Her penalty was to lose her position as an administrator of the estate.
In our last couple of posts, though, we were talking about common law rights to Marley's image and name. With the (fraudulent) estate plan set aside, how did she manage to hold on to the common law rights?
We'll explain in our next post.
Source: Forbes.com, "Are Bob Marley's Heirs Destroying His Legacy?" Danielle and Andy Mayoras, Dec. 5, 2011
]]>For the most part, the litigation has related to preserving Marley's image -- or, at least, the rights to his image. What is odd is that the family acquired the rights they are so intent on enforcing by common law, according to the complaint in this most recent matter (against the singer's half-brother). And that got us to wondering.
]]> As hard as it is to imagine, Marley died without a will. He died of cancer just a year after being diagnosed, so the decision is puzzling. Some people suggest that he was simply abiding by his Rastafarian faith: He could not recognize his own mortality. Nothing says "I'm going to die someday" like a last will and testament.Marley was living in Florida at the time of his death, but he was still a citizen of Jamaica. As a result, our own intestacy laws didn't apply; Jamaica's did. And they're different.
In Florida, Marley's widow would have received one half of his estate. She was his surviving spouse, but he (allegedly) had children by other women. If she were the mother of all of his children, she would have inherited the entire estate.
In Jamaica, she received 10 percent of Marley's assets and the use of another 45 percent until her death. The rest would go to his descendants, regardless of who their mother was.
If ever there were a situation that cried, "You do the math," this was it. Litigation ensued.
We promise to finish this up before 2012.
Source: Forbes.com, "Are Bob Marley's Heirs Destroying His Legacy?," Danielle and Andy Mayoras, Dec. 5, 2011
]]>The law recognizes an individual's right to protect his image; you can't just slap Marilyn Monroe's face on an Oil of Olay ad, for example. You need permission. Why? There are a few reasons, really, but the one we're interested in here is this: Her image has value -- value that she created through her own hard work. In theory, at least, Marilyn herself had rights to her image and all the economic benefits she could squeeze from it. In theory.
]]> When a celebrity dies, usually the rights to image, persona, etc. pass to his or her heirs. The transfer is either the result of a good estate plan or the result of state law. This is one reason the language of the complaint caught our attention. The document uses the term "common law" to characterize the Marley heirs' rights to his name and mark.In our last post, we described a couple of different meanings of the term common law. A third, common-law copyright, is the last we'll review, and it is really a specific application of the second use of the term (as in common-law marriage) from our last post.
Common-law copyright is sometimes referred to as the right of first publication. It's the right to a work that arises at creation, not publication. You scratch a Haiku onto a note pad during a meeting, and you own the copyright. Even if it never sees the light of day, those 17 syllables are your property.
The right was codified in the Copyright Act of 1976. Common-law copyrights recognized before the act's effective date (Jan. 1, 1978) were not affected.
With all this in mind, how was it that Marley's widow had only common law rights to parts of the singer's legacy? Were the rights granted by the court or acquired after years of the heirs saying they owned them? Was it a simple matter of the common-law copyright, with Marley's right to his image as its creator simply passing with everything else to the heirs?
Well, it turns out Marley wasn't an American citizen when he died. And that wasn't the only complication.
Sources:
Forbes.com, "Are Bob Marley's Heirs Destroying His Legacy?," Danielle and Andy Mayoras, Dec. 5, 2011
Black's Law Dictionary (9th ed. 2009)
]]>In our last post, we mentioned that the family owns the rights to parts of Marley's legacy by common law. It's easy to pass over that term, "common law," when reading through the complaint. But after a while, it comes back and begins to nag a bit. Why common law?
]]> In the law -- or The Law, as a friend insists on writing -- there are a few meanings of the term. Generally, if you hear a group of lawyers talking about common law, they are talking about legal rules that come from judicial decisions rather than statutes. Yes, this is the "judge-made law" that comes up in political debates.Then there is the common law in common-law marriage, which, by the way, was abolished in Florida in the late 1960s. Common-law marriage is more than just living together and holding yourself out to be married. The partners must be capable of being married, too. They cannot be married to other people, they cannot be brother and sister -- essentially, they meet all the legal criteria needed to get married but never get a license or go through a ceremony.
A marriage recognized as common-law, though, binds the parties as if they'd been married by the Pope himself. Their children are legitimate. They can break up, but they'll need a divorce or an annulment if they want to marry other people.
There is also something called a common-law copyright, and we'll discuss that in our next post.
Source: Forbes.com, "Are Bob Marley's Heirs Destroying His Legacy?," Danielle and Andy Mayoras, Dec. 5, 2011
]]>The heirs own the rights to Marley's name, likeness, identity and persona, according to court documents. While some of the Marley legacy is the family's by common law (the right to the name BOB MARLEY, for example), in the 30 years since Marley's death the heirs have registered copyrights and trademarks for a variety of Marley-related goods and services.
]]> On the page, at least, the defendant and Marley had little more than a mother in common. Marley was raised in Jamaica, in the village of Nine Mile and the slums of Kingston. Many years younger than Marley, his half-brother was born and raised in Delaware. Later, he and his mother moved to Florida, where she died in 2008.Nine Mile has become synonymous with Marley. He is buried there, as are his mother and another half-brother. Nine Mile may be the crux of the dispute between the heirs and the brother-in-law.
As we mentioned, the brother-in-law has long been associated with a Miami music festival -- the Nine Mile Music Festival, in fact. He is also involved with a Nine Mile tour in Jamaica, as well as a restaurant there named Mama Marley's.
Apparently, the man recently filed a trademark application for "Nine Mile," and the Marley heirs got wind of it.
We'll continue this in our next post.
Sources:
U.S. District Court, Southern District of Florida, Fifty-six Hope Road Music Limited v. Richard Booker, et al., Complaint, Case 1:11-cv-24326-MGC
CBS Miami, "Bob Marley's Family Smoking Mad, File Suit Against Relative," Dec. 2, 2011
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