Would you leave a tattoo as a gift in a will??
Most legal updates are about tax and changes in legislation. Many may say, not great bed time reading. It is not often that an article in a legal journal grabs your attention as this one did with me! And, of course being me, I felt I had to share it with you because it shows how the law is changing to catch up with modern life.
Apparently, companies are now being set up to enable your tattoos to be preserved following death. Of course, it started in America, but apparently this really happens! It would seem that the rise in fame of some tattoo artists and the status this brings to their creations could turn a simple tattoo into a work of art!
The fabulous team at the Society of Trust and Estate Practitioners have explored this new area of law to see what would happen as there is no case law or statute in England to provide guidance. So I thought I would let you know what they say just in case you feel the need to preserve your treasured tattoo for your loved one!
The starting point for discussion seems to be the law which says that a person cannot dispose of their body through a will. However in two cases which have come before the courts it was determined that a preserved human specimen kept by a doctor was considered to be property being capable of being sold by executors on the doctor's death. The second case related to the theft of body parts from the Royal Collect of Surgeons. Both of these cases indicated that it is possible for a body or part thereof to be property capable of being sold or stolen. The STEP article reports that in this later case "the judge observed that the common law does not stand still and on some future occasion the courts may hold that human body parts are capable of being property where they have a use or significance beyond their mere existence". Decisions have since followed which indicate that sperm donors are the legal owners of their frozen sperm and that a gift of frozen sperm in a will could be left as a gift in a will.
So, in this modern age where people want to do all sorts of weird and wonderful things after their death, what happens if you are an executor that has to give a tattoo to a beneficiary. Firstly, I would call the office and ask us to locate the STEP article and find the two amazing authors who can provide guidance but then I would consider the advice they give.
Personal representatives of an estate have to determine how and where a body should be disposed of and make the arrangements. The wishes of a deceased about how their body is disposed of are not binding, but also are not irrelevant. Whilst a personal representative may not be obligated to preserve a tattoo, in the event of a dispute a Court may make orders to enable such a thing to be done, particularly if it is written in a will.
Once the tattoo has been removed it is likely to be considered property based on the cases above so it could be gifted under the terms of a will, which is binding, but the removal is an instruction which is not binding?! So, perfectly clear then!!
Also the article goes on to question whether executors have a duty to preserve the value of an estate for the beneficiaries and whether they could be held liable if they did not preserve a tattoo which could, in the future, become valuable? The answer to that question seems to be that we just don't know yet.
It would seem, following this article, that I may need to begin to ask questions about the tattoos that my clients have to see whether we need to have a more peculiar conversation about what they want to do with them.
May be I will not have to deal with this question in 2020 but I can certainly see it coming round the corner. After all, look at what we now do with Banksy's works of art, which were once upon a time considered graffiti!!