University of Hawaii at Manoa law professor Randall Roth was “tickled” to see his name on the big screen.
Never mind that it appeared just after Dollar Rent-A-Car as the last in the long list of credits for “The Descendants,” a movie based on the first novel by Kaui Hart Hemmings. Roth felt it was “extremely generous” for the film’s director, Alexander Payne, to do so for the insight he provided on trust law.
Roth was the featured speaker this week at several Rotary Clubs in West Hawaii. He’s on the Big Island, visiting his son, John, who is a Rotary Club of North Hawaii member and an attorney specializing in real estate law, estate planning and taxation.
Wednesday morning, during the Rotary Club of Kona Sunrise’s meeting, Roth shared his experiences with this “reel drama” surrounding estate planning, as well as the real legal issues and half dozen family trusts in Hawaii that have faced a similar situation as the one depicted.
In the film, Matt King, played by George Clooney, is a lawyer dealing with a midlife crisis, personal tragedy and family drama. Amidst the emotional chaos, he must decide whether to sell a valuable 25,000-acre parcel of land on Kauai left in a trust to a developer. Looming is the seven-year deadline, when the trust ends.
Prior to filming, a producer called Roth, a co-author of “Broken Trust,” a book that exposed the mismanagement of the Bishop Estate, one of the largest charitable trusts in the nation. He agreed to a dinner meeting because he’s a fan of Payne’s Academy Award-winning movie “Sideways,” and immediately read the book.
Toward the end of dinner, Roth was asked to comment on parts of the movie script as an unpaid consultant. Payne wanted the script to be looked over by a trust lawyer, not necessarily to make major changes, but to get a real sense of the times and decisions surrounding the complicated nature of land trusts in Hawaii, Roth said.
“This led to a series of emails and two face-to-face meetings, during which we discussed a trustee’s power to act unilaterally, the fiduciary duties trustees owe to trust beneficiaries, problems associated with co-ownership of valuable undeveloped land, and reasons why some trusts must eventually terminate,” Roth said. “I was not optimistic about Alexander’s chances of making a Hollywood blockbuster that would satisfy detail-oriented trust lawyers, but he tweaked his script and I was surprised by how much I enjoyed the movie. In fact, my heart nearly skipped a beat when I realized that George Clooney was about to utter those three magic words: Rule Against Perpetuities.”
Roth summed up the Rule Against Perpetuities as a law that limits how long the wishes of a dead person can be imposed on the living. It prevents a trust from lasting indefinitely and sets a term. The maximum is usually 100 years before the trust is terminated. This rule does not apply to charitable trusts, only private ones, he said.
Throughout his presentation, Roth recalled actual private land trusts in Hawaii that have been suggested as possible influences for Hemmings’ novel. He detailed how these trusts had conflicts of interest; sold land and distributed cash to beneficiaries, reducing the chances of a lawsuit; proved that joint ownership can be a “train wreck;” sold land to the Trust for Public Land with the intent of ensuring its perpetuity for the public; or decided to put real estate into a limited liability company, a corporation then managed by several people who originally managed the trust. He explained how changing the classification of trust properties, those usually classified as conservation land or for agricultural use, doesn’t just change their monetary value. It can also garner exemptions for other laws.
Roth said the movie has sparked more interest in this subject and the issues surrounding “keeping country country.” He pointed out in the movie “a great conversation starter” — the moment when King is about to sign the sale document, which would make he and his family wealthy, and decides to put the pen down. The character is torn, as many might feel if faced with the same decision in real life.
Roth mentioned the current struggle between those who want more real estate development and those who think Hawaii is already overdeveloped. He enjoyed the film’s open ending, as King announces there will be no sale and that he intends to find another way to preserve the land by the deadline. The outcome is up to the viewer.
A self-described “believer in collective wisdom,” Roth said he likes to think that an informed public will help influence good decisions even on percolating difficult decisions pertaining to land use and challenges associated with long-term trusts.
