The King and I…P

14 Feb 2018

Before the news of the latest royal engagements, it was announced that the last testament of King Edward VIII, latterly the Duke of Windsor, who famously abdicated the throne to marry the American divorcee Wallis Simpson, can be unsealed, so that a copy can be released to the Royal Archives.

All Wills and other documents deposited at a Probate Registry, either the principal registry or one of the district registries, are open to public inspection (for the payment of a small fee), unless the registrar deems that such inspection would be undesirable or otherwise inappropriate. Royal Wills have been sealed by convention since Queen Mary requested her brother Prince Francis of Teck’s Will be sealed upon his death in 1910. Prince Francis allegedly left family assets to his mistress, something which Queen Mary would not wanted to have become public knowledge.

An application in respect of Edward VIII’s Will was made to Sir James Munby, the president of the Family Division of the High Court, and the Will will now be unsealed, copied, and resealed, with the copy being delivered to the assistant keeper of the Queen’s archives.

The unsealing of the Will may be good news for fans of television dramas about the Royal Family. One of the justifications for releasing a copy of the Will, aside from the primary aim of ensuring that the Royal Archives has complete records, is that the owner of the copyright in any literary works produced by the Duke of Windsor can be identified, which would include any letters he wrote to Wallis Simpson. If the owner of the copyright can be established, it will be possible to request permission to use the wording from the letters in a television series.

Whilst the modern law of copyright is contained in the Copyright Designs and Patents Act 1988 (the CDPA), the copyright in any unpublished work produced before the introduction of the 1988 Act is governed by whichever Act was in force at the time of its creation, principally either the Copyright Act 1911 or the Copyright Act 1956. Both of these Acts provide that copyright subsists for the life of the author plus 50 years after the year in which they died, rather than the 70 years provided for under the CDPA. As the Duke of Windsor died in 1972, copyright in his works subsists until the end of 2022.

It will be interesting to see whether the Duke of Windsor specifically dealt with his copyright in his Will. Unless there is a contrary intention in his Will, it will be construed that, for all unpublished works, the copyright in those works passed to those who received them. Therefore, if for example all of the Duke’s letters were left to Wallis Simpson, she would have received the copyright.

This matter highlights the importance of dealing correctly with non-tangible assets in one’s estate, be they literary or artistic works, music, or videos. Moreover, as we increasingly store assets on non-tangible mediums, we need to consider how the executors of our estates will gain access to those assets in order to administer them. Valuable cryptocurrency holdings, for example, could be wasted, should executors not have the required information to access the deceased’s wallet.

Our Tax and Estate Planning team deals with Wills and estates containing all kinds of assets and has expertise in digital currency. For information on how we can help you, contact a member of our team.

Our Intellectual Property team has a strong reputation for providing advice on trade mark and copyright infringement. Contact a member of our team if you require any advice.




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