Christy Walsh, who has been commenting at length on thebrokenelbow.com about the latest controversy to hit the Bobby Sands Trust, sends this open letter to the trustees:
I have recently read a statement on Anthony McIntyre’s’ blog The Pensive Quill: Sands Family Responds To Publication Of Book – ‘Bobby Sands Freedom Fighter’. The Trustees’ may recall that in July 2000 Journalist, Ed Moloney, wrote an article for the Sunday Tribune, reproduced on his blog site The Broken Elbow: “Sands’s family considering legal action against The BST”.
Mr Moloney has suggested to me that the legal action did not materialise because Bobby Sands’ family may not have been financially able to meet the high legal costs of such an action. This letter is my response to the contents of both of the above published articles. As what I detail below has the potential of giving rise to serious ramifications for the Trustees I am addressing my response as a letter to each Trustee.
In light of the expressed and prolonged difficulties or objections made by the Sands Family dating back for at least 16 years it is my view that the Bobby Sands Trust (BST) should at least co-operate with the family and not be obdurately disdainful of Bobby Sands next of kin because of their assertions that they are the lawful beneficiaries of the estate.
This is especially so if the BST only exists on account of a technical legal error made in the terms of the originating instrument. Intransigence on the part of Trustees may contribute to the family’s economic difficulty in having the matter lawfully settled in court.
Neither an agreement nor faulty Trust that deprived Bobby Sands’ son of his right to inherit from his father would likely be held valid if the matter were to come before the courts. The purpose of this letter is to urge the Trustees to have the legality of the BST governing instrument properly re-evaluated with regard to probate and intestacy law.
Possible financial difficulties preventing any legal challenge by relatives does not relieve the BST and its legal advisors from their responsibility to due diligence in knowing, whether or not, if they may be acting unlawfully on accounted of a flawed Trust.
I understand that Bobby Sands had never expressed that it was his wish to disinherit his son in order to establish the BST. I note that the idea of a BST was formed sometime after his death and it has summarised its mandate in the following terms:
“The Trust holds the copyright on all Bobby’s poetry and prose and was established to publish, promote and keep in print the extraordinary writings of this young Irish man, who from prison isolation became an international figure in 1981, and who to this day continues to inspire Irish republicans in their pursuit of freedom from British rule.”
It appears from the Trusts statement above that the BST Trustees only act as custodians of Bobby Sands’ estate and not in the interests of any beneficiaries.
One rule against Private Purpose Trusts is that it must have at least one beneficiary to enforce the Trustees obligations. A trust for an abstract purpose like ‘keeping in print’, or ‘promoting’, Bobby Sands work, with no beneficiary, is void in law.
The BST asserts that it possesses the copyright to all of Bobby Sands works. The members of the Trust are complete strangers to the title of Bobby Sands estate, and, they are not managing the estate in the interests of his next of kin. This is not a case of a deceased author’s work becoming ‘orphaned’ because no living relatives can be traced. Bobby Sands’ next of kin are known to the BST. The Sands Family have publically called on the BST to disband, specifically because; it does not act in the interests of the deceased or his next of kin.
A trustee has a legal relationship with the beneficiaries of a trust. Like all trusts, the BST Trustees principle obligation would be to account to the beneficiaries to whom they owe their duty of care. If Bobby Sands’ next of kin are not his heirs and beneficiaries then the Sands Family have a right to know from the Trustees who they allege is the beneficiary of his estate, and, for whom they act. For a Trust with no known beneficiary it is notable that it has no fewer than eight Trustees.
Since Trustees are usually paid for their services it then would appear, in this case, that they are the only drain on the BST’s funds. Further, what are the BST’s governing rules on the numbers of Trustees and the terms of remuneration of expenses? What are the BST’s rules on Trustees length of service? These questions are also relevant to the legitimacy of the BST.
The BST should act appropriately and respectfully toward Bobby Sands’ successors and not leave them lingering in prolonged years of uncertainty on account of the BST’s own confusion, secrecy and lack of transparency. If lawful title over Bobby Sands estate has been vested in the Trustees the Sands Family, at minimum, deserves to have sight of such proof confirming that, as the deceased’s next of kin, they have been lawfully disinherited. The BST is potentially responsible for serious interference with the private life of Bobby Sands’ relatives’ right to inherit.
The Trustees should also consider that in the 1980s any Lawyers acting on behalf of the proposed Trust may have been confused at that time as perhaps were the relatives, friends or associates of Bobby Sands. Fundamental mistakes made on how to administrate the intestate estate and any copyright, I believe, are inherent in the trust’s instrument and thus the problems today. One basic error that immediately appears obvious is that the Lawyers failed to properly ascertain the precise identity of all relevant kin, and, who among them was Bobby Sands’ actual ‘priority’ successor in title. The rights of the deceased’s son were not taken into account.
There is no doubt that Bobby Sands son would have been entitled to a grant of representation had any lawyer considered his interests in his father’s property.
Another possible error is that, if, for example, one of Bobby Sands’ sisters had agreed to the setting up of the Trust, then that would not have deprived her, or any other relative of their rights as beneficiaries if the focus of the Trust was only on printing and promoting the work; that is because that would have been a natural pursuit of the BST without need to be specified in the originating instrument.
As a Trustee it is relevant for you to know that in cases where a deceased died after 1st January 1956 intestate, and domiciled in the North of Ireland, their spouse, children, brothers or sisters are, in that ‘priority’ order, the lawful successor/s of the deceased’s estate and not any formulated Trust devised by unrelated associates.
Hence, Bobby Sands’ son was, and is, the lawful successor in title of his father’s estate. However, until now you may have been misinformed or misguided on the legal status of the BST because it has been in existence for so long without challenge but that does not mean that it was formed in accordance with the wishes of the deceased Bobby Sands, or, his lawful successor.
If I am correct then each Trustee could risk personal liability for gross negligence amounting to fraud should you wilfully ignore valid evidence or facts of law that may subsequently come to your notice during your service as a Trustee. If Bobby Sands’ next of kin still retain their right to the copyright then I would urge each Trustee to consider the potential for personal criminal liability for involvement in copyright piracy, infringement, exhibiting, distributing, depriving or otherwise prejudicing the true copyright owner/s of Bobby Sands work.
By this, I am not suggesting that any member of the Trust has knowingly acted in bad faith to date but once the Trustees become aware of such a scenario then they would be foolish not to at least have the BST’s legal standing re-evaluated.
Even if the risk of any criminal liability is remote, civil liability may not be, in the event that Bobby Sands’ next of kin are ever in a position to finance a legal action against the BST. Should that happen, then the Trustees are personally liable and could be faced with extra costs and damages for any unnecessary delay they cause in releasing control of Bobby Sands copyright material back to his next of kin and rightful heirs.
If my concerns about the legitimacy of the BST are accurate then ‘printing and promoting’ Bobby Sands work is none of the Trustees business without formal consent from Bobby Sands’ successor. As successor in title of his father’s work, Bobby Sands’ son’s ownership of copyright still subsists. There are members on the BST who are themselves published authors and have children of their own. It would be in their personal interests to know that someone more meaningful, like their own children, will inherit copyright of their work when they die and not a motley crew of former associates like the self-styled Bobby Sands Trust.
I would re-emphasis to the Trustees that in the absence of any written will the law is explicit on who is a deceased’s priority successors in title. Bobby Sands’ son’s current deprivation from his father’s estate may have originally arisen as a result of possible confusion or lack of legal representation when he was a child. If there has been any misappropriation in error of his father’s estate then I am sure the Trustees’ will now do the honourable thing and endeavour to put matters right.
2nd March 2016