Arts Law has found that there are many Indigenous artists who pass away without leaving a Will. In response to this, Arts Law with the assistance of lawyer, Natalie Mason from law firm, DLA Phillips Fox have prepared a Will especially for Indigenous artists.
What is a Will?
A Will is a particular legal document that sets out what you want done with your property including copyright, potential royalties, income, remaining artworks as well as other possessions after you pass away. A Will makes it clear what the intentions of the Artist were.
Why are Wills important?
This is a very important area of law which artists need to deal with so as to avoid disputes and confusion about what should happen in the future. Many artists have things of value that someone will benefit from when they pass away, for example their artworks, copyright and any income they receive from their artworks. It is important to make it clear who you want to benefit and possibly receive money from these different things.
Wills often allow artists to provide ongoing financial support for their family and community.
How do you make a Will?
Any person, usually over the age of eighteen, can make their own Will.
A Will contains special legal terminology which must be included, otherwise the Will can be found to be invalid by the courts. Wills also have special requirements as to how they can be signed and witnessed.
When an artist is writing a Will, there are a number of elements to consider. A Will should always be written clearly, so that it is easy to understand what the person wanted to happen. The Will maker:
- should make a list of all of their property, including artworks and copyright (an inventory);
- must choose the person (executor) who will carry out the instructions that they write down in their Will;
- must write down the people that they want to receive their property or other benefits (the beneficiaries); and
- can nominate the people who will take care of any of their children who are under the age of eighteen (the guardians).
It is also a good idea for an artist to consider and write down the burial or ceremonial arrangements that they would like followed if this is important to them. If the artist wants to leave someone, like a particular family member out of the Will, it is a good idea to write this down as well.
Once a Will is prepared and signed, it should be kept in a safe, secure place like in a deposit box at the bank. It is a good idea for an artist to tell some people close to them where they have put their Will so that is can be easily found when needed.
What happens if an artist passes away without a Will?
If an artist passes away without a Will there are laws that say what happens and who will be entitled to property and benefits such as the artists artworks, copyright and future money received.
The laws vary between different states and the people that the law says receive things under a Will may not be the same people that the artist would have liked to benefit.
How can Artists in the Black help?
Death is a very sensitive topic in all communities, indigenous and non-indigenous. AITB is sensitive to respect the customary ways in different communities. Most communities have sorry time for an artist which can last up to six months or even longer, depending on what the community feels is appropriate. So it can be particularly difficult to deal with the property of an artist that passes away without a Will when their name cannot be said or written for a certain period.
In December 2006, AITB attended the ANKAAA conference and AGM in Darwin. Robyn Ayres, Executive Director of Arts Law did a presentation on Wills especially set up for Indigenous artists. The presentation generated a number of questions from different art centre managers. Many art centres expressed interest in having workshops on how to write Wills for their elderly artists.
Similar comments were made after conducting workshops in the Top End, including Katherine and in Central Australian communities. Over a period, it also became clear to AITB that there were many elderly artists who wanted to know how to prepare Will.
As a result of this, we have developed a sample Will for Indigenous artists. Our thanks go to Natalie Mason from the law firm, DLA Phillips Fox for her assistance in preparing this document.
The sample Will is set up to help Indigenous artists organise giving their copyright in existing works, assets including artworks which may be on consignment in art galleries as well as specific gifts to relatives.
The sample Will comes with an explanatory memorandum which is a comprehensive set of notes that goes through and explains each section of the Will. It explains each clause of the Will and what to include in each clause of the Will. The sample Will is easy to follow and defines what legal terms such as “trustee” mean.
Arts Law, in association with the law firm, DLA Phillips Fox is going to organise workshops in parts of Western Australia and the Northern Territory to assist artists and art centres to prepare Wills for all artists. Arts Law and DLA Phillips Fox are also providing assistance to an elderly artist in Western Australia by meeting and drafting a will for her in the next few months. This arrangement will be assisted by an interpreter as well as an intermediary.
The AITB sample will is available for free on the Artists in the Black website.
Patricia Adjei is the Indigenous Solicitor at Arts Law.