In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.
Here’s the power of Hollywood: It can take a topic that inspires more than its share of dread for more than a few law students — estate planning — ane make it a powerful undercurrent of an Oscar-winning movie. That’s what occurs in The Descendants, a movie that won the Oscar for best adapted screenplay, and was nominated for Oscars in four other categories, including best picture, best actor (George Cloney) and best director (Alexander Payne). The movie, which is just out on DVD and Blue-Ray, is based on the novel by Kaui Hart Hemmings. Though its plot takes many twists, the heart of the story turns on what happens to valuable land on Kauai, left to Clooney’s character in a trust by a wealthy banker and a Hawaiian princess. The trust is about to expire and Clooney, a property attorney, must decide whether to sell the property to a developer, enriching himself and his greedy cousins.
To most viewers, the film’s depiction of estate planning provides little more than a gloss. But in this Oscar-winning production, the legal issues were thoroughly developed and fact-checked. Director Payne consulted with Randall Roth, a University of Hawaii School of Law professor and nationally known trusts and estates expert. To make the work accessible, the film has tweaks and “widening” of legal issues to fill in the viewer’s gaps. Still, among the topics it touches that will be familiar to legal eagles are:
The Rule Against Perpetuities. This aspect of estate law, abhorred by many law students but still applicable in many states, makes its way into the movie, probably giving most attorneys flashbacks to property law class. This rule prevents a trust from lasting indefinitely and sets a maximum term. It traditionally was measured by “lives in being plus 21 years,” which meant that most trusts would last around 100 years. To make the facts of the book’s plot work into the movie’s timing, the number is rounded up (incorrectly) to 150 years.
Joint ownership issues. The form of joint ownership presented in The Descendants is known as a tenancy-in-common, though this term is not explicitly used. Clooney and his siblings all own their own share of the pricey property, also known as an undivided interest. As the plot shows, this arrangement easily may lead to family squabbling, since even a party owning a small percentage can prevent the sale or development of a property.
Trustee’s Duties. Under common law, trustees carry fiduciary duties — either express or implied — to the beneficiary of the trust. The most important of these are: (1) to manage the trust in accordance with the instructions of the settlor; (2) a duty of good faith, which requires the trustee to put the best interests of the trust ahead of his own; (3) a duty of prudence, which requires the trustee to manage the trust property with the same degree of skill that a prudent person would exercise in his or her own affairs; and (4) a duty to preserve and protect the trust assets, or trust corpus, to satisfy both present and future claims against the trust.
An important legal concern in all trusts, as The Descendants illustrates, is determining what the person who set up the trust (the settlor) would want to do with the property, even several years death. Clooney struggles with this issue as he stares at portraits of his long-dead ancestors, who have kept the land untouched for decades. Since Clooney is the only named trustee, he wields the power and the obligation to execute the trust to the settlor’s true intent.
[Eds. note. We offer a spoiler alert: To continue to tackle legal aspects of this movie, we’ve got to give away key plot elements in this next paragraph ….]
Whether trustees are friends, family members or professionals, they owe a duty not only to settlor but also to the the beneficiaries: This includes a fiduciary duty always to act in their best interests and to avoid conflicts of interest. Clooney may breach his fiduciary duty, as he turns down an attractive offer from a real estate developer, who also happens to have had an affair with his comatose wife. When Clooney refuses to sign the deal, he tells his cousin, “You can sue me.” Likely, this statement was made because attorney Clooney recognizes the legal implications of his decision. Even if sued by his cousin, in real life, Clooney could offer the defense that his ancestors would have wanted to keep the land pristine.