Title says it all, pretty much. I was reading a play, in which a plot point revolves around a guy who was a writer and poet, who had never published any of his work, and died with a lot of unpublished writings. He specified in his will that they be destroyed unread after his death.
His siblings, who are his only heirs, and one is executor, decide to read and publish his notebooks. So it’s kind of along the Franz Kafka - Anne Frank - Emily Dickinson - John Kennedy O’Toole axis, although not exactly like any of these.
My question is: If the executor decides to publish the works and ignore the instructions in the will, and all the heirs are on side with this plan, would there be any consequences? Any lawsuits? A visit from the will cops?
I am not requesting legal advice, just an opinion on a fictional device.
IANAL, but I think that the legal principle at work here is generally phrased as “a dead hand cannot bind the living”. The deceased can choose who inherits the physical notebooks and the copyright to the works contained in them, but he cannot restrict what that person can do with them.
State law must vary on an executor carrying out deceased wishes. The author hasn’t specified the ownership of the unpublished works, if it belongs to the estate and all the estate owners agree not to destroy them then it’s only a question of the executor’s duty and if he needs to go to court to get permission to ignore the instruction.
Wasn’t there a thread about a pet ordered to be put down in a will?
An executor is not a CPU into which the will is fed as a program to be executed. His job includes interpreting the testator’s wishes, in case of any ambiguity, or even any perceived (by him) ambiguity. Hence I suspect as a practical matter all the executor would need to do is say That’s not really what Jim meant or Had he known about this and that Jim would’ve wanted this other to happen. Obviously if the heirs disagree, it can be a problem, and the whole mess ends up in the court, where the judge makes a decision about what Jim meant. But if nobody disagrees with the executor’s decision – I mean nobody *with standing * (e.g. something to lose) of course – then I can’t foresee any problem. Among the decisions of the testator to which the law gives considerable deference is the choice of executor. It would be a very strange thing to write very explicit instructions that your work be destroyed, and then at the same time choose an executor who believes you want just the opposite. What should the law make of such idiocy? I am inclined to believe they would weight the choice of executor more heavily, on the grounds that the living person can react to new facts, discuss the situation with the heirs, and be asked to explain his decision so all may be satisfied as to its antecedents – none of which can be done by words on a page.
Probably a more interesting case is where the executor, chosen well by the testator, agrees the works should be destroyed, and so do the heirs – *but * they are, for example, widely suspected of genius by people with no formal standing to object. For example, what if the testator writes down the chemical formula for the Elixir of Life, and both he and his heirs, and his well-chosen executor, agree humanity is too immature to use it wisely, and the formula should be destroyed? However, a famous scientist (former partner of the deceased) came to know of the existence of the formula, but not the formula itself, and wants it preserved. Now what?
A counter example is the Isabella Stewart Gardner Museum. Gardner left instructions in her will that nothing in the museum be moved (which means there are empty frames where the paintings were stolen). The trustees (presumably the “heirs”) had to get permission from the courts to add an extension so clearly the will is still legally binding.
Did they really have to get permission from the courts, or did they just choose to do it because they wanted everything to be in order? If they had neglected to get permission, and just built the new wing, what would have happened?
Good question, and I don’t know the answer. My guess is that they had to go to the courts; otherwise why incur a needless expense?
In case it’s not clear, I have little idea (and less experience) regarding the OP and I’m curious as to the answer. The ISGM happens to be a story I’m familiar with.
We have just, more or less, done this. (I strenuously objected, but my lawyer pointed out that at this point, agreeing will cost less time and money than fighting it.)
Of course, the problem was, SOME of the initial heirs thought they could speak for everyone, including editing their own adult children out of the will, and distributed the estate according to their wishes. What I ended up agreeing to was to help get out of the initial mess.
3½ years, and the will is just now going to probate!
Huh? If X is given something in the will, and X does not agree to forego it, then in what world would X not have standing to sue and in what world would an executor think it was OK?
What exactly did this mean? “SOME of the initial heirs thought they could speak for everyone, including editing their own adult children out of the will”
If they had ignored the terms of the endowment, it’s possible that Harvard would have gone to court to enforce that stipulation of the endowment- because if the museum didn’t follow her wishes, the property and collection were to be sold and the proceeds would go to Harvard. Or maybe Gardner’s family would have brought legal action. Possibly, the museum might have been able to return the funds and get out of the stipulation-which is how Avery Fisher Hall got renamed. But that’s the thing- endowments and trusts almost always have someone with standing to challenge things who is not going to agree. Either the deceased’s family (who wants the museum that Aunt Sophie endowed to follow its original mission) or the back-up beneficiary (which will get the property if the challenge is successful)
It doesn't necessarily work that way in more ordinary cases. As more than one lawyer put it to my mother, you can't control everything from the grave *. I'm not even sure if instructions in a will to keep writings unpublished are binding , but if you don't have an estate of a size that makes it worthwhile to set up a trust, there are ways for your heirs to get around almost everything. If my mother leaves her house to her living children in equal shares , three of us can decide the whole thing goes to the fourth one who lived with her and disclaim our inheritance. If she leaves her bank account to the four of us and specifies that the share of any who pre-decease her goes to that person's children , I can disclaim my share and it will go to my children. If she leaves $40K to my brother, nothing can stop him from splitting it so each of us gets $10K. A much larger estate might involve taxes, but my brother can give each of his sisters $10K without any gift or estate taxes being involved.
There aren’t any estate cops running around forever checking to see if someone published works that the author didn’t want published. Just like they don’t check to make sure that the good china went to the correct granddaughter. Courts check to some extent to see if the money/real estate was distributed properly but that’s about it.If someone objects about how personal property was distributed , or that the manuscript was published the court might look into it. But if all the heirs truly agree, there is no one to object
Another example of this sort of thing is the Barnes Foundation, which in 2004 was able to persuade a court to let it move its collection from a building in the Philadelphia suburbs to Center City. Community leaders in the suburbs legally challenged the decision (they like the museum where it was, thank you), but they were found not to have legal standing to do so.
In the OP’s scenario, I would have thought that it would be necessary to get some legally binding agreement from the heirs about the disposal of the work, and the division of any profits.
I can easily imagine everyone saying “Sure - go ahead” assuming that it will be inconsequential. Then, later on, when the work becomes a best-seller and the film rights are sold for mega-bucks, they all end up expensively squabbling in court.
Suppose John has a large stamp collection. And he wants it kept together and not sold off after his death. He has a friend, Bob, who is also a stamp collector and he knows Bob would keep the collection intact. He discusses this with Bob and Bob agrees that’s true.
John also has a son, Junior. Junior has never been interested in stamps but he tells John he would like the collection as a memorial of his father and would keep it intact. John is convinced.
John makes it clear that his primary desire is keeping the collection together. He says he would be willing to give it to either Junior or Bob to accomplish this. But as long as both men would keep the collection intact, he’ll give it to his son Junior. John writes his will.
John then dies and Junior inherits the stamp collection. Bob is not an heir. Junior then announces that now that he owns the stamp collection, he’s going to sell off the stamps one by one even though the will says he was supposed to keep the collection intact. Junior says that was John’s wish but now that John is dead, his wishes don’t matter anymore. It’s Junior’s property now and he can do what he wants with it. The other heirs named in the will don’t care and tell the executor Junior can do what he wants as far as they’re concerned.
But Bob objects. He says he’s not an heir but he could have been. If John had known Junior was going to sell off the collection, he would have left it to Bob instead. So Bob says he has standing to challenge the changing of the terms of the will even though he’s not mentioned in the will.
Is this a case where all the heirs can agree to ignore a will’s direction but somebody who’s not an heir can legally object?
The only people who would raise any sort of fuss would be the heirs. If they are all in agreement, then there would be no one to cause any trouble! Simple as that.
There is not a “will enforcement police” or anything like that. No one would go around checking or give a hoot except the heirs…
Note if a large business, corporation, or lawyer in possession of the unpublished documents was involved , THEN those people might cause some trouble if they were being asked to go against what they were instructed to do - might want a court ruling or advice from a lawyer before handing over any documents (to protect themselves).
After the funeral, some of the heirs literally sat down and wrote their fantasy will, and then acted as if it were valid. Naturally, they did not tell those of us who weren’t there that there even was a will.
A year later, I received some documents in the mail, including a copy of the original will. The executor was trying to get us all to sign a consent order to rubber-stamp approval of what they had done, presuming that if the heirs were unanimous the courts wouldn’t much care. (Edit: that’s when another lawyer was hired and the shit began to fly like a murmuration of starlings.)
As to “why in the world would an executor think it was OK,” the answer is (1) greed, followed by (2) stupid, and (3) hiring a lawyer who is very smart and very competent but rather oily. And, of course, the entire thing has been hidden from the courts by said lawyer and said aunt for 3½ years. I am looking forward to the court’s eventual response once our lawyer explains how the whole thing went down!
No. Bob has not suffered any injury which a court can remedy. If standing was based upon “could have been” then all limits are off. I could have been any number of things.
ETA: Bob may have a case for challenge the entire will if he can prove fraud or other things.