To Will or not to Will: Leaving a legacy

We’re back with a recap of Episode 2, Season 2 of Fisk – our favourite fictional Wills and Estates lawyer. This week, we saw Helen take on two new clients. First up was Nikolai, the son of the now-deceased famous playwright Samuel Bennett.

Nikolai was left everything in his dad’s Will, including the rights to his classic play, Death of Man. Nikolai discovers that a local theatre company wants to put on a production of the play, but to change the cast and characters to women – something his father had banned – and wants to take legal action to stop it.

Later we meet Fisk’s second client, Mareena, is an Instagram influencer who wants to create the first video Will, targeted for millennials, a #Willennial, if you will.

Lots to explore, so we asked one of our real-life Wills and Estates lawyers, Kerrie Wood, to explain how it all works.

Nikolai inherited ownership of his father’s work. How does this work when something like copyright passed down through a Will? Fisk mentions that as new owner of the copyright, Nikolai can make changes to it.

Copyright material is considered personal property and under Section 196 of the Copyright Act 1968 (Cth), can be transferred by Will.  Assigning a copyright must be done in writing, and the executor of the deceased’s estate needs to complete the relevant paperwork to assign the copyright.   

For dramatic works, such as the Fisk example of the play Death of Man, Nikolai will receive the copyright to this for a standard term of 70 years. After this, the work becomes “public domain”, meaning no one person owns it exclusively.  

But as the new owner of the copyright, Nikolai has the right to:

1. Reproduce the work in material form;
2. Publish the work;
3. Perform the work in public;
4. Communicate the work to the public; and
5. Make an adaption of the work. 

Is changing the gender of the characters really a breach of copyright? The deceased had banned women from performing his play, how does that interact with gender discrimination laws?

As the new owner of the copyright, Nikolai would be able to make changes to the play, including allowing others to change the gender of the cast. However, it is evident that the original author wanted that the cast be men, and it was clearly his intention that Nikolai would ensure that his legacy and the way he had written this dramatic work would continue. 

In Queensland, it is illegal to discriminate against a person on the basis of gender.  There are however exceptions to this, and one of them is where the person’s sex is a genuine occupational qualification, including:

1. The duties of the position can be performed only by a person having particular physical attributes that are not possessed by persons of a different sex from the relevant sex; and
   
2. The duties of the position involve performing in a dramatic performance or other entertainment in a role that, for reasons of authenticity, aesthetics or tradition, is required to be performed by a person of the relevant sex.  
   

It is arguable that this play does not breach gender discrimination laws, and whilst Nikolai has the power to make these changes to allow women to perform this play, doing so would go against his father’s wishes.

It is typical of beneficiaries to hold a strong desire to uphold the wishes and legacies of the person who made the Will, regardless of how antiquated the views are.

Helen’s second client Mareena wants to create a video Will, but Fisk advises she can’t do that -  Wills need to be written documents. Why is this?

In Queensland, section 10 of the Succession Act 1981 provides that a will must be in writing and must be signed by the person making the Will, in the presence of two or more witnesses, present at the same time.

However, there is a legal precedent for a video Will: recently the Supreme Court of Queensland admitted that a video recording constituted a document that formed a will under the law in a case called Radford v White [2018] QSC 306.

Unfortunately, in this case, the video didn’t appoint an Executor, so given the deceased was still married to his ex-wife at time of death, it is almost certain that further legal proceedings followed to resolve this issue.

In the Fisk example, while Mareena could technically create a video Will, (and I for one am a fan of the hashtag #willennial), given that she has had the benefit of receiving legal advice and has been advised of the (albeit “boring” by her own admission) statutory requirements of creating a Will, she should probably follow Fisk’s advice. Unfortunately, the law has not yet caught up to today’s technology and if she wants to make sure her wishes are followed, a properly written and executed Will is the way to go.

At first, Mareena says she doesn’t want to write her Will as she’s young and isn’t dying for some time. Fisk advises her it’s still a good idea to create one as we never know what could happen. Why is it a good idea for everyone to have a Will?

It’s true, we never know what could happen and death isn’t something that only happens to old people.  It’s a common theme that we see with younger people that there is a perception that Wills are only a document that older people have who have assets such as a property, cash and shares.  But this couldn’t be further from the truth. 

One huge asset that most don’t take into consideration is our superannuation, and any associated death benefit policies that are attached to those superannuation funds. For many, these can be worth hundreds of thousands of dollars.

If you die without a will, Section 36 of the Succession Act will say who will benefit from your estate, and it may not be who you want to benefit.  For example, if you have been in a relationship for a couple of years, you will be considered defacto and your partner will take the majority benefit from your estate, even if you would have preferred your family to benefit over your partner.

This content is not endorsed by the ABC and Maurice Blackburn has no association with the ABC. Views and legal commentary are our own.