Denver Bar Association
March 2012
© 2012 The Docket and Denver Bar Association. All Rights Reserved.
All material from The Docket provided via this World Wide Web server is copyrighted by the Denver Bar Association. Before accessing any specific article, click here for disclaimer information.


Movie Review: Lessons for Lawyers Abound in ‘The Descendants’

by Patrick Thiessen

 

"The Descendants"
115 minutes, drama.
Rated R.
Starring George Clooney;
directed by Alexander Payne.

"The Descendants" stars George Clooney as Matt King, a real estate attorney facing many challenges in his personal life. As the movie opens, King’s wife has been involved in a boating accident and is in a coma. King obviously is struggling with the situation. As if this crisis were not enough, King also is the sole trustee and beneficiary, along with his many cousins, of a family trust that possesses ancestral lands worth upward of $500 million.

There is an upcoming family meeting to determine what to do with the lands in light of the trust’s pending dissolution because of the rule against perpetuities. Most attorneys at least vaguely remember the RAP from either their wills course or the Bar exam—"No interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest." The family trust is set to dissolve by its terms so as not to violate the RAP.

The movie is based on a book of the same title by Kaui Hart Hemmings and won a Golden Globe for Best Picture-Drama and Best Actor for Clooney. At press time, the movie also was nominated for Oscars in Best Picture, Actor in a Leading Role for Clooney, Director for Alexander Payne, Writing (Adapted Screenplay), and Film Editing.

One thing I found interesting about King’s character is that, although he is a lawyer and the movie most certainly involves legal issues, there is not one courtroom scene or one client meeting. We see King perusing thick stacks of legal documents from time to time, but the story is not about King the attorney; rather, it is about King the person.

Nonetheless, there are plenty of lessons for lawyers in the movie, which are discussed below in no particular order:

 

Be Involved in Your Children’s Lives

No attorney consciously strives for the opposite of this lesson, but we all know that juggling a career and parenting responsibilities is a serious challenge. Early in the story, we learn that King has spent years neglecting his parenting duties—he even refers to himself as "the backup parent." With his wife in a coma, King must step up to the plate and parent his teen and pre-teen daughters, who are foul-mouthed and disrespectful of his authority. When he goes to pick up his oldest daughter from her boarding school, he finds her partying and drunk on the beach. Not exactly A+ parenting.

King seems resigned to the girls’ misbehavior as penance for his previous lack of involvement. As a parent-to-be, I hope I will not allow my career to stand in the way of being involved in my child’s life. Thankfully, King sets the bar pretty low.

 

Invest in Your Marriage

While King’s wife is in a coma, his oldest daughter informs him that his wife had been cheating on him. He is stunned. Much of the plot involves King searching for answers, but he eventually assumes some of the blame for his wife’s actions because of his time-consuming work schedule. Unfortunately, he is not the first attorney impacted by marital infidelity.

It happens to many lawyers, but it should not be the norm. Take simple steps such as calling your spouse over your lunch hour, leaving him or her a nice note, and prioritizing time together. Invest in your marriage before it is too late.

 

Never Represent Yourself

As lawyers, we hear this adage from the time we enter law school. King does not heed this advice; he is the sole trustee of the family trust, yet throughout the movie he never appears to be represented by counsel as he makes decisions. King frequently stares at the photos of his ancestors with the pressure of his decisions clearly weighing heavily on his mind. It makes for great drama, but King almost certainly would be assisted by the advice of dispassionate counsel (though that might lessen the dramatic tension of the movie). Similarly, family trustees oftentimes benefit from the advice of counsel as they struggle to balance their fiduciary duty and difficult family dynamics.

 

Consider Appointing a Professional Fiduciary

King mentions that he is the successor trustee to his father, and a good bit of the plot follows his attempts to do what is best for his family and its lands. However, he faces a lot of pressure. Like King, it is certainly appropriate in many circumstances for a family member to be a trustee. However, there are times when the size of the trust corpus or potential for family conflict makes it wise to have a professional trustee. When creating a trust in these circumstances, an attorney should discuss this possibility with the client.

 

Consider How a Trust will Terminate

One of the biggest challenges King faces is the dissolution of the family trust because of the RAP. How much King’s ancestors actually pondered the termination of the trust is not clear in the movie but their decision certainly put a lot of pressure on him. Colorado has amended the RAP by statute and it generally prescribes a single limitation period of 1,000 years for trusts. This change follows the movement by some states to allow so-called "dynasty trusts" that permit wealth to remain in trust for much greater periods of time. An attorney should carefully counsel a client regarding the ramifications of a dynasty trust to best avoid placing pressure on family members like King.

 

Carefully Consider the Decisions in an Advanced Directive

King’s wife prepared for the future and executed an advanced directive, otherwise known as a living will. When my firm prepares medical powers of attorney and living wills, we ask our clients whether their agent’s decisions or the directions in their living will control in the event of a conflict between the two. There is no correct decision, but the potential implications, such as the pressure it may place on an agent like King, should be discussed with the client so they can make an informed decision.

I never would have expected Hollywood to make a movie that dealt so heavily with trusts and estates issues. Don’t worry about dragging your non-attorney spouse to a boring lawyer movie, though. Based on the accolades this film has received, this movie will entertain anyone. Also, it may just teach you a lesson as an attorney D.

 

Patrick R. Thiessen is an associate at Poskus, Caton & Klein, P.C. in Denver. He practices in the areas of estate planning, probate administration and litigation, and government benefits planning. He may be reached at (303) 832-1600 or thiessen@poskuscatonklein.com.


Back
Member Benefits DBA Governance Committees Public Interest The Docket Metro Volunteer Lawyers DBA Young Lawyers Division Legal Resource Directory DBA Staff The Docket