Writers should make a will for the same reasons anyone else makes a will: to ensure their wishes are carried out after their death.
However, writers also have another reason to make a will: copyright. Who you leave your literary legacy to makes a huge difference, even if you’re not around to care.
The role of a copyright holder or literary executor
- Granting permission for others to use your work
- Withholding permission from others to use your work
- Posthumous publication(s)
- Caretaking – ensuring your work is not used without permission, guarding your reputation and ensuring your work is properly credited
Why it matters
- Death is an unpredictable event and chances are there will be at least one work in progress and/or a collection of unpublished works – who would you trust to edit, prepare for publication or even destroy these?
- Do you want any of your work to be published posthumously, eg as a collected or selected poems?
- Do you want any out of print works reissued?
- A copyright holder giving permission for biographers or critics to quote from your work can imply that a biography or critical work is approved, who would you trust to make that decision?
- Conversely a copyright holder’s refusal to allow biographers or critics to quote from your work may frustrate efforts to assess and maintain your work in the public domain, ensuring you slide into obscurity,
- Poet Sylvia Plath didn’t leave a will. After her death her copyright and literary legacy belonged to her estranged husband, Ted Hughes. While he published her collection “Ariel”, a collected poems and gave her mother permission to publish Sylvia’s letters, he let his sister, Olwyn Hughes, deal with requests from biographers and critics. This resulted in unfair criticism of him and mythologizing of her death at the expense of her poetry.
- Dmitri Nabokov published an unpublished and unfinished novel his father, Vladimir Nabokov, demanded to be burned, thus acting contrarily to his father’s wishes although in the interests of literature.
- Poet Lilian Bowes Lyon didn’t make provision for copyright in her will and the current holder is a great nephew. Since her death, a small, limited edition publication, “Uncollected Poems” has been published. All her other work is out of print and only available via second-hand or collectable books dealers.
How to choose a Literary Executor
- Think about someone who is empathetic to your aims and what you want your writing to achieve,
- There will be unpublished work and notes and drafts and fragments, would you literary executor be able to recognise what needs preserving and those practice pieces that should be trashed?
- Do you want your literary executor to preserve your emails and earlier drafts or just finished, publishable work? Your biggest fan may find your shopping lists fascinating but a trusted reader will be able to separate incomplete notes from first drafts,
- Will your literary executor follow your instructions or will they make their own judgements as to what is worth publishing posthumously and what isn’t?
- You can choose more than one person. If so, you need to decide whether your literary executors can make decisions independently from each other or whether all of them have to agree and what happens if one or more decide to step down.
Making a Will
Under English law a will may be invalid if it is not drawn up and witnessed properly. Therefore it is always worth making a will with a solicitor. It may seem expensive, but an invalid will may result in your wishes not being complied with.
Decide who you want your non literary assets to go to and who will execute your will. The executor need not be your literary executor, in which case you will need to specify that the executor may not distribute any part of your estate consisting of manuscripts, drafts, books, stories, poetry, drama, published or unpublished in whole or in part or rights to proceeds from any writings or rights to performance but will transfer these to your literary executor. Your solicitor will word this appropriately to your wishes. You can also add specific instructions.
In addition to your will, you can drawn up a letter of wishes. This needn’t be in formal legal language, but gives you the opportunity to outline why you have appointed your chosen literary executor and/or outline your wishes with regard to your literary estate. Letters of wishes are useful where disputes may arise as they show the reasoning behind the way you have drawn up your will.
Consider listing your computer and social media accounts and passwords with your will so your literary executor can gain access. There’s little point in asking someone to try and get any unpublished work published, if they don’t know the password to access it.
Paul Lee died without making a will so I am now his copyright holder. I have edited the poems he left behind and completed a part-finished sequence with a view to organising his second poetry collection which will be published posthumously. Paul Lee’s short stories are available here and a collection of remaining poems not in “The Light Forecast” or his second collection will become available in due course. He has a Facebook page, worth checking for current information and updates.
By Emma Lee