A Will for Willa Cather

112 Pages Posted: 9 Dec 2018

See all articles by Thomas Simmons

Thomas Simmons

University of South Dakota Knudson School of Law

Date Written: November 14, 2018


Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to “dead hand control” and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation.This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.

Keywords: Purpose Trusts, Creative Works, Estate Planning

JEL Classification: K19, K34

Suggested Citation

Simmons, Thomas, A Will for Willa Cather (November 14, 2018). Missouri Law Review, Vol. 83, No. 2, 2018, Available at SSRN: https://ssrn.com/abstract=3284499 or http://dx.doi.org/10.2139/ssrn.3284499

Thomas Simmons (Contact Author)

University of South Dakota Knudson School of Law ( email )

414 E. Clark Street
Law School suite 212
Vermillion, SD 57069
United States
605.658.3533 (Phone)
605.677.5417 (Fax)

HOME PAGE: http://www.usd.edu/faculty-and-staff/Tom-E-Simmons

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