This article continues my survey of some of the various forms of legal protection for cryonics patients.  The previous article examined laws that directly affect what happens to a person’s body after legal death, both in the period immediately after declaration of legal death, and indefinitely thereafter.  We saw that the amount of prospective autonomy a person is permitted in this regard can vary significantly from jurisdiction to jurisdiction, with more or less consideration afforded to the wishes of the person’s next of kin, religious beliefs, societal norms and other public interests.  Two other legal structures which can and are used by cryonicists to promote the success and timeliness of cryopreservation, maintenance, and resuscitation are wills and trusts.

As before, this is a broad survey, with references to specific laws for explanatory purposes.  Given the context, it does not go too far to say that for your own safety, you must not rely on the following analysis as legal advice, and should instead consult an advisor licensed to practice in your jurisdiction.

Wills

While a person’s instructions regarding disposition of their human remains may not need to appear in their will in order to be enforceable (in those jurisdictions where such instructions are enforceable), the will’s primary function of distributing the deceased’s property can also be used to promote a cryonics patient’s interest in a timely cryopreservation and revival.

One option that should not be ignored on account of its simplicity, is that a cryonics patient can make gifts through their will to their long-term care provider, cryonics advocacy organizations, and/or relevant research organizations.  However, these gifts can only help the individual patient if they are successfully cryopreserved in the first place, and a cryonicist can use their will to promote that crucial objective as well.  In her article, “How to Protect Your Cryonics Arrangements from Interference by Third Parties”, Rebecca Lively discusses the use of “no contest” clauses in wills as financial dis-incentives to interference by next-of-kin.

“No contest” clauses are also known as in terrorem[1] clauses, or forfeiture clauses – but in terms of will construction, these clauses are actually conditional gifts, that is to say, gifts that are conditional on certain behaviour.  In the usual scenario, the trigger is contesting the will in some way: for example, applying to a court for a declaration that the will is invalid because the will-maker didn’t observe the proper formalities, or wasn’t competent to make a will at the time of its execution, etc.  A very simple forfeiture clause might read as follows: “I leave $50,000 to Mary unless she contests the validity of this Will or any part of it, in which case said $50,000 shall instead go to the Society for the Prevention of Cruelty to Animals.”  If that clause was in a cryonicist’s will, which also contained his/her consent to body donation and/or instructions regarding disposition of human remains[2] (or incorporated those directions by reference to documents outside the will[3]), then contesting the will or the validity of the consent or instruction would trigger the condition and the gift to Mary would lapse and go to the SPCA instead.  However, there are plenty of ways that next-of-kin can interfere with prompt stabilization and cryopreservation without making legal contest so, as Lively suggests, it may be wise to draft the triggering condition to include other forms of interference.  Of course, the difficulty with going beyond the categories courts are familiar with is the risk that, if challenged, a creative condition might be deemed void for uncertainty.  For instance, what quantum of delay in contacting a patient’s cryonics organization constitutes “interference”?  The answer to this question will vary by circumstance.  No doubt for this very reason, Lively suggests drafting such a clause to provide for “inheritance on a sliding scale based on the amount of time which passes between your legal death and your cryopreservation”[4], where, presumably, the entire estate goes to charity/cryonics organizations if the will-maker is not cryopreserved at all.  However, given the many factors that can contribute to delay or non-preservation over which the beneficiaries have little to no control, that kind of inflexible forfeiture clause might come across as unfair and have the undesirable effect of promoting legal interference with the patient’s will in circumstances that are already sub-optimal for other reasons.  A better alternative might be to draft a forfeiture clause that is triggered by intentional interference, the presence of which (whether by act or omission/delay) is to be decided by an expert delegate with no direct interest in the matter, with at least partial reference to specific criteria described in the will.[5]

The degree and requirements of enforceability of forfeiture clauses vary considerably from place to place.  One jurisdiction might require a “gift over” to a specific beneficiary (like the example above)[6], while another might hold valid a forfeiture clause where the gift simply lapses into the residue of the estate.[7]  As Rebecca Lively points out, forfeiture clauses are not allowed at all in Florida and Indiana[8], and in many jurisdictions where they are permitted, they will nevertheless not be enforced against beneficiaries who contest the will with “probable cause” (though this should exclude contests founded solely on hostility towards a deceased’s cryonics arrangements). Furthermore, if the will is contested successfully, and declared invalid, then the forfeiture clause goes along with the rest of it, and the next-of-kin will collect as per the jurisdiction’s intestate succession regime.  Finally, forfeiture clauses will be held void or unenforceable to the extent that they offend public policy.  For instance, some jurisdictions permit applications by a surviving spouse and/or children to “vary” a will that does not make adequate provision for them in the circumstances.[9] Strictly speaking, these support applications are not “contesting” the will, but in any case, a forfeiture clause that was drafted with the intent of foreclosing such applications may be held to be against public policy, and thus void.[10]

Support applications are not the only means whereby next-of-kin can avoid, or partly avoid the sting of a forfeiture clause.  Oregon (and thirty-nine other US states) allows a surviving spouse to opt for an “elective share” in lieu of what the deceased’s will gives them (or, presumably, doesn’t give them).[11]  The right to make this election can be waived by written agreement[12], so it stands to reason that a forfeiture clause written to exclude from the estate any person who interfered with the will-maker’s cryonics arrangements, would be declared void to the extent that it attempts to cut off an interfering spouse’s statutory elective share.  Thus, even if a spouse’s actions trigger a forfeiture provision pertaining to a specific gift to them in the will, they will still be able to elect to receive this mandated share in the deceased’s estate.

Ten of the other states operate instead on a “community property” system[13] which, generally described, means that any earnings of either spouse or partner after marriage or registration of domestic partnership becomes “community property”, as does any property acquired with such earnings or with other money expressly or impliedly designated as “community funds”.[14] In Washington, a surviving spouse automatically gets half of all community property[15]. This cannot be avoided by will[16], nor does the statute provide for waiving this right.

So what’s the moral here?  Well, depending on where a cryonicist lives, and whether he/she is married or partnered and/or has children, the use of forfeiture clauses in a will to disincentivize interference with cryonics arrangements requires not just that those special next-of-kin are given “something substantial” to ensure their abidance (as Lively suggests), but that they are given something substantial above and beyond what they are entitled to under any statutory claims they can make which either (a) avoid the effects of the forfeiture clause, or (b) don’t trigger it in the first place.  A further difficulty, for those cryonicists living in jurisdictions with support order provisions, is that the size of such an order is based on consideration of the circumstances of the surviving spouse and/or children, the size of the estate, and non-specific statutory language like “necessary and reasonable”[17], or “adequate, just, and equitable”[18], so it is impossible to know on the face of the statute just how much is enough.  In many cases, the utility of forfeiture clauses as legal protection from interference will be greater for cryonicists who do not have living spouses or children, which is unfortunate given that those particular family members often pose the biggest threat.[19]

As a final note, wills may be used to transfer assets into a patient care trust or personal revival trust, which will be examined in the next section.  However, such funds would be better insulated from the estate if they were transferred during the cryonicist’s (first) lifetime.

Trusts

The basic premise of trusts is that legal ownership of property and the right to “enjoy” (i.e. benefit from) property can be separated, the former belonging to one person or group of persons (trustees), and the latter belonging to another person or group of persons (beneficiaries).  The duties of a trustee towards the beneficiary’s interests are more onerous than the duties of contracting parties, so trusts are often used to protect and provide for vulnerable persons, like minor children and spendthrift relatives.  For this reason, one would expect trusts to play a role in the legal protection of cryonicists, and indeed they do.  The two most prominent examples are patient care trusts and personal revival trusts.

(i) Patient Care Trusts

Patient care trusts promote the maintenance and revival of cryonics patients in two important ways.  First, transferring legal ownership of the assets provided to fund those objectives to trustees protects the assets from third-party litigants.  Second, patient care trusts protect those same funds from misuse by the cryonics organization itself and misappropriation by its directors or employees, and even the organization’s dissolution.

The most intuitive way of accomplishing these objectives would be to execute a trust under which present and future patients were beneficiaries.  However, because cryonics patients are dead, legally speaking, they have no legal personality and cannot be the beneficiaries of a trust.  Hence, while the terms of the Alcor Patient Care Trust (“APCT”) do state that Alcor is “acting on behalf of the Patients in biostasis”, Alcor is designated the sole legal beneficiary.[20]  Protection against third-party litigants is effected through the magic words, “[t]he interests of the beneficiary in principal or income shall not be subject to the claims of any creditor or to legal process, and may not be voluntarily or involuntarily alienated or encumbered”[21], together with the sections of the Arizona Trust Code upholding the validity of such provisions.[22]

The APCT’s ability to protect patient care funds from misuse, misappropriation, or potential dissolution of the organization ultimately boils down to whether (or how easily) Alcor, as the sole legal beneficiary, can simply terminate the trust and reclaim legal ownership of the funds.  The only termination scenario contemplated by the APCT (wherein Alcor still exists[23]), is if all the patients are revived and reintroduced to society.  All of the Arizona Trust Code provisions addressing modification or termination of charitable purpose trusts (like the APCT[24]) require that the court hearing the application consider whether modification or termination is consistent with the purposes of the trust and, if the trust is terminated, that the trust property be distributed by the trustees in a manner consistent with the purposes of the trust.[25] Practically speaking, it would be very difficult for Alcor to appropriate the patient care trust funds for any purpose other than patient care.

The APCT was established in 1997 and became irrevocable in 1999. The Cryonics Institute (“CI”) established an Endowment Care Trust Fund in 2004, as part of its agreement with Michigan’s Department of Energy, Labour, and Economic Growth to become licensed and regulated as a cemetery.  According to the conditions of licensure, “[t]hese funds will be set aside for maintenance, which shall include liquid nitrogen storage of existing CI patients.”[26]  Obviously the scope of this trust is not as ambitious as the APCT (nor was it intended to be), but it does protect at least some of the assets earmarked for patient care from misuse or misappropriation.[27]

(ii) Personal Revival Trusts

In his article, “Personal Revival Trusts: If You Can’t Take It with You, Can You Come Back To Get It?”, Igor Levenberg points out that for all the benefits of patient care trusts, “those who are revived will eventually have to provide for their own care.”[28]  Patient care trusts provide legal protection for cryonics patients’ interests at an organizational level, but those who are interested in additional protection – during their time as cryonics patients as well as post-revival – can establish personal revival trusts for this purpose.

To some extent, personal revival trusts (aka reanimation trusts) suffer from the same legal hindrance as general patient care trusts, namely that the individual cryonics patient cannot simply name themselves beneficiary of the trust because upon cryopreservation they will lose their legal personality, and the trust would revert back to their estate.  However, Levenberg describes two ways a cryonicist can draft themselves into a trust that don’t require proof at the outset that human cryopreservation is reversible.  One option is that the revived patient is a contingent beneficiary of the trust[29]; the other is that the patient’s revival is a condition subsequent which terminates the trust, with disbursement of the trust property to the revived patient[30].  The distinction is subtle, but bears important implications.  If the revived patient is named as the contingent beneficiary, the trust must have another beneficiary in the interim, who could potentially call for modification or termination of the trust.[31]  However, on such an application, the court will have to consider the patient’s contingent future interest, and may appoint a guardian to represent that interest.[32]  On the other hand, if the revival of the patient is a condition subsequent terminating the trust, the cryonicist could choose between a trust with an interim beneficiary, or a purpose trust with no interim beneficiary (like a charitable purpose trust, or a trust for the maintenance of one’s “grave”).[33] Purpose trusts have the additional advantage of being available for this use in jurisdictions which do not otherwise allow perpetual trusts.[34]

Levenberg suggests that any concern over the possibility of the interim beneficiary hijacking the personal trust for their own benefit can be cured by designating one’s cryonics organization in that role.[35]  With the right drafting, in a jurisdiction that places emphasis on the original terms and purpose of the trust, this may well work (as with the APCT, discussed above).  An added level of assurance can be effected through the use of trust protectors, relatively recently emerged characters in trust law who can be empowered by the trust to, among other things, grant beneficial interests to new individuals – like newly revived cryonics patients… or newly legally recognized cryonics patients.[36]  Trust protectors feature in many of the personal revival trusts under development, including the Alcor Model Trust.[37]

Trusts clearly play an important role in the legal protection of cryonics patients.  However, on a critical note, it must be remembered that not all problems have financial solutions.  Cryonics patients benefit greatly from secure financial vehicles to support their continued maintenance, fund resuscitation research, and even revert to them if and when they are reanimated, but if the care of a particular patient or group of patients falls below reasonable standards due to negligent mismanagement, or is being threatened by hostile governmental policy, what can trustees really do?  Neither patient care trusts nor personal revival trusts have any means of exerting direct control over the patients themselves, regardless of circumstance.


Endnotes:

[1] Latin: “in fear”.

[2] Remember that these are actually separate legal mechanisms for transfer of custody of human remains. See Keegan Macintosh, “Legal Protection of Cryonics Patients, Part 1” Depressed Metabolism (23 February 2012), online: Institute for Evidence Based Cryonics <http://www.evidencebasedcryonics.org>.

[3] See e.g. Last Will and Testament for Human Remains and Authorization of Anatomical Donation, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[4] Rebecca Lively, “How to Protect Your Cryonics Arrangements from Interference by Third Parties”, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[5] This should be available in at least some jurisdictions.  See Re Tuck’s Settlement Trusts, [1977] EWCA Civ 11.

[6] Bellinger v Nuytten Estate, 2003 BCSC 563 [Bellinger].

[7] Peter G Lawson, “The rule against in terrorem conditions: What is it – Where did it come from – Do we really need it?” (2005) 25 ETPJ 71 at 80-81.

[8] Supra note 4.

[9] See Wills Variation Act, RSBC 1996 c 490, s 2; see also ORS § 114.015.

[10] See Kent v Mackay, [1982] 139 DLR (3d) 318 at para 20 (BC SC) (available on WL Can): “It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a testator to circumvent the provisions of the Wills Variation Act by the creation of such as [the no contest clause here].  It is important to the public as a whole that widows, widowers and children be at liberty to apply for adequate maintenance and support in the event that sufficient provision for them is not made in the will of their spouse or parent.”  This decision was followed by the court in Bellinger, supra note 6.

[11] ORS § 114.600.

[12] ORS 114.620.

[13] Leaving Georgia, which only provides a surviving spouse (along with any minor children) one year’s allowance from the deceased’s estate: OCGA § 53-3-1.

[14] See, for example RCW § 26.16.030.

[15] RCW § 11.02.070.

[16] RCW § 26.16.030(1).

[17] ORS § 114.015.

[18] Wills Variation Act, supra note 9.

[19] Mike Darwin, “Marcelon Johnson dies and is not cryopreserved” Depressed Metabolism (24 January 2009), online: Institute for Evidence Based Cryonics <http://www.evidencebasedcryonics.org>. See also supra note 4.

[20] Alcor Patient Care Trust, online: Alcor Life Extension Foundation <http://www.alcor.org/Library>.

[21] Ibid, art 3.

[22] ARS § 14-10502. These clauses are called “spendthrift provisions” due to their use in trusts drafted to support persons with bad borrowing habits.

[23] If Alcor ceases to exist, and the APCT cannot be converted into an independent legal entity, then the funds will be disbursed to another organization, or by some other means further the purposes of the Trust to support the care, revival, and rehabilitation of Alcor patients. See supra note 20, art 17.

[24] While Alcor drafted the APCT to be consistent with its 501(c)(3) status, whether the APCT is in fact a charitable purpose trust concerns the application of ARS § 14-10405(A). Framing the purpose of the trust in terms of scientific research and education is not necessarily conclusive of the matter.

[25] ARS § 14-10410, 14-10411, 14-10413, and 14-10414.  Not all jurisdictions mandate as strong deference to the original terms of the trust; see, for example, Trust and Settlement Variation Act, RSBC 1996 c 463.

[26] Ben Best, “Conditions to Licensure as a Cemetery” The Immortalist (March 2004), online: Cryonics Institute <http://www.cryonics.org/immortalist>.

[27] The assets designated for patient care on CI’s 2011 year-end financial report amount to more than double the contents of the Endowment Fund: Statement of Assets, Liabilities, and Fund Balance, online: Cryonics Institute <link:http://cryonics.org/financials.html>.

[28] Igor Levenberg, “Personal Revival Trusts: If You Can’t Take It with You, Can You Come Back To Get It?” (2009) 83:4 St John’s Law Review 1469 at 1494, n 129.

[29] Ibid at 1489.

[30] Ibid at 1495.

[31] Ibid.

[32] Ibid at 1489-90.

[33] Ibid at 1498.

[34] Ibid.

[35] Ibid 1495-96.

[36] See e.g. ARS § 14-10818(C)(1).

[37] Ben Best, “Asset Preservation Group Meeting” Long Life (July 2011) 23 at 24, online: Cryonics Institute <http://www.cryonics.org/immortalist>; see also Ben Best, “Fourth Asset Preservation Group Meeting” Depressed Metabolism (2 June 2010), online: Institute for Evidence Based Cryonics <http://www.evidencebasedcryonics.org>.