“Go Set a Trustee”: Harper Lee and Privacy in Estate Planning
The life and death of one of the 20th century’s most celebrated American authors offer valuable reminders about the differing natures of wills and trusts.
This year is the 65th anniversary of the release of the classic American novel, To Kill a Mockingbird, written by Harper Lee and published in 1960.
I mention this because, first, an autographed copy resides on my bookshelf. Also, and more germane to this article, after Ms. Lee’s death in 2016, her estate was involved in controversies that raise at least two useful lessons in estate planning, especially in preserving privacy and making clear one’s wishes for the disposition of certain assets.
The Mockingbird Trust. In 2011, Harper Lee created a trust, appropriately titled “The Mockingbird Trust.” Among her personal assets that were transferred into the trust were her literary rights, including the rights to To Kill a Mockingbird and various other published and unpublished works, including the 1957 manuscript of an unpublished sequel, Go Set a Watchman.
(Of interest to fans of Ms. Lee, Watchman was written a few years before Mockingbird, but the story, set in the same locale with several common characters, takes place two decades after.)
For fifty years after Mockingbird was published, the reclusive Ms. Lee’s sister, Alice, served as her attorney, financial advisor, and protector of her privacy. Alice turned 100 in 2011, and one could speculate that her reaching that milestone might have been a factor in Harper Lee setting up a trust.
At about that time, Tonja Carter, a member of Alice Lee’s law firm, succeeded Alice as Harper Lee’s attorney and was a trustee of the Mockingbird Trust. In 2014, Ms. Carter discovered in Harper Lee’s safe-deposit box a manuscript of the unpublished Go Set a Watchman. She forwarded the manuscript to Ms. Lee’s literary agent, and in 2015 – a year before Harper Lee’s death at 89 – HarperCollins published the book.
Its release sparked a controversy over whether Ms. Lee had wanted Go Set a Watchman to be published at all. For most of the 55 years following Mockingbird’s release, she insisted she would never write another book, not wanting to experience again the pains of publicity for herself and her small Alabama hometown.
Some of Ms. Lee’s friends strenuously criticized the book’s publication, citing her steadfast, long-standing refusal to publish again; claiming that, thus, publication was not consistent with her wishes; and arguing that, given her declining condition, she was not mentally competent to approve publication and that she may have been coerced or otherwise suffered elder abuse.
Her trustee, Ms. Carter, denied those claims (the State of Alabama’s Human Resources Department investigated and took no action) and stated that Ms. Lee was “happy as hell” with the publication. The widely reported controversy eventually subsided.
Lessons in Estate Planning. This is an interesting parable that carries two important lessons:
Privacy. First, after Harper Lee's death, her trust became a source of controversy due to (a) Ms. Carter's substantial control over the trust’s literary properties, and (b) the alleged “lack of transparency” surrounding the arrangements.
What that allegation overlooks is that “lack of transparency” – i.e., privacy protection – is one of a trust’s most valuable benefits. While it can be debated whether Ms. Lee approved of Watchman’s publication, it is undeniable that her trust did its job – including keeping her wishes and instructions out of the public eye.
If her trust could stand up under the pressures of celebrity, so can yours under more normal conditions.
Specificity. Second, the two people - Alice Lee and Harper Lee - who could have extinguished the debate either could not (Alice died a year before the book was published ) and did not (true to her reclusive nature, Harper probably did not care to make public announcements about her private affairs). Had either expressed Harper Lee’s wishes concerning Watchman in a way that would have provided guidance to Harper’s trustee, the controversy could have been avoided.
In creating your trust, it is efficient – but not necessarily effective – to make blanket statements about how you want the trust’s assets to be managed and distributed.
If, like Harper Lee, you own property that warrants special treatment in order to support your specific desires concerning that property, ask your estate planning attorney for the best way to express your wishes to your trustee.
Epilogue. In addition to the Mockingbird Trust, Harper Lee also had a will – a simple pour-over will that she executed eight days before she died. Because its purpose was simply to ensure that, upon her death, any assets held outside of her trust would automatically convey to the trust, the will’s contents weren’t very exciting.
But the New York Times didn’t know that and didn’t care. Assuming that there was a story in a celebrity signing a “deathbed” will, in 2018, the Times sued Harper Lee’s estate, asking the court to make public the will’s contents. (At Ms. Carter’s request, an Alabama court had sealed the will in 2016).
Ms. Carter ultimately consented to unsealing the will and, in the process, offered a reminder of one of the consequences of probating an estate: wills become public record.