Nicholas “Nick” Enright was a well-known Australian playwright who wrote, amongst other things, ‘On the Wallaby’, and ‘Blackrock’, and he adapted ‘Cloudstreet’ (Tim Winton’s novel) for the stage and wrote or co-wrote screenplays (‘Lorenzo’s Oil’) and musicals.
Nick died on 30 March 2003. Five days prior to his death he had made a Will appointing Dimity Kingsford Smith and Ian Enright as executors, and appointing David Marr the literary executor.
Nick directed that all income derived through the copyright and intellectual property in his works, be distributed to the National Institute of Dramatic Art; and the Actors’ Benevolent Fund.
Probate was granted of that Will on 19 November 2003.
Dimity retired from the role of Trustee in June 2007 and Ian has continued in the role. She could only have done so if her executorial functions were completed because unless her role was completed an executor cannot resign without permission from the Court.
Ian and David sought orders from Court to clarify if David was appointed as an Executor or as the “literary Executor” in the Will. If David is the “literary executor” does he have standing to ensure the proper administration of the Literary Estate by the Executors including seeking orders that they file and pass accounts relating to the administration of the Literary Estate?
A “Literary Executor” in Australia does not have a formal role in Succession law. In many ways it is not an “executor” in the probate sense of that term at all. He, she or it might be nothing more or less than an agent, or some other sort of representative, or merely a service provider. As an example until recently is Christopher Tolkien who operated the Tolkien Estate, which manages the rights of his fathers literary works through a corporate structure.
The scope of a literary executors role depends upon numerous factors including:
(a) the nature of property required to be managed by such a person (eg, merely a physical library of books or one or more manifestations of copyright in literary work);
(b) whether that property is liable to change in character in the foreseeable future (e.g., with renewal or reversion of a right to copyright, or with a grant or expiry of a contractual licence to copyright material);
(c) the management objectives of the person, or persons, empowered to deal with the property to be managed (be the objective enduring fame, the encouragement of research or profit maximisation, for example);
(d) plans for disposition of the property to be managed, or income that may be derived from it; and
(e) the time period over which the property, and associated income, is proposed to be managed…
If a Will appoints a “Literary Executor” to a nominated part of a deceased’s estate, a grant of probate is limited to that property only.
If the language used in a Will is meaningless or ambiguous the Court can use extrinsic evidence to assist in interpretation of the Will.
It follows that Nick intended to appoint David as Executor of the Testator’s Literary Estate, i.e. the copyright and intellectual property in the Testator’s works, thus permitting a grant of Probate to be made to Ian.
The Court found the Will, taken as a whole, reflects a scheme by which relevantly:
The literary property, according to the Nick’s wishes, was not to be sold, but the royalties, or other earnings from the literary property, were to provide the outcome to be distributed to the beneficiaries NIDA and ABF
The Will deals exclusively with the Literary Estate and that is the literary property was to be controlled or managed by David as literary executor. As such there will be further hearings in this matter.
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