Abstract After catching the brilliant National Geographic series ‘Year Million’,1 I was left in awe of the changes that may be in store for the human race as we move towards the next stage of evolution. As a trusts and private client practitioner, I started to ponder some of the issues professional advisors may have to address now, and in the near-to-distant future. Cryogenics: it's like Coca-Cola—‘The real thing’ Although still in its infancy, the idea of freezing your body immediately after your death is still a pretty radical idea, despite it being a viable option for some.2 Several years ago I was approached by a US company offering cryogenic services and an interesting discussion ensued concerning the utilization of Cayman Islands’ private purpose trusts3 to provide not only a stable ownership platform for the business but also to inspire confidence in prospective clients that this enhanced ownership stability will safeguard their suspended animation in perpetuity. From a prospective client’s perspective, they want to ensure ongoing fees and expenses associated with their preservation are consistent, and that somebody with a fiduciary duty (ie a trustee) is there to keep a close eye on the storage facility to make sure everything remains on the up-and-up. Therefore, a purpose trust (such as a Cayman Islands STAR trust) is ideal from the prospective clients’ perspective as well since it is possible to specify the payment of storage fees and oversight of the cryonic storage facility as the primary purposes of the trust.4 Fast-forward a few centuries into the future (cue the science fiction music), and consider the possibility that the client awakes to find themselves in a strange new world, without any friends, family—and perhaps more pragmatically—any financial means to sustain themselves. Assuming some form of currency is still in use (Global Bitcoins perhaps?) the trust should contain a power to support the reanimated settlor financially. The objects clause of such a trust may look something like this: The objects of this Trust are to: 1. Pay the annual storage fees associated with the cryonic suspension of the body of the Settlor from the income or capital of the Trust Fund; 2. Take such steps as are necessary to preserve the physical body of the Settlor until such time (if any) as the Settlor is successfully reanimated from cryonic suspension; and 3. Pay or apply such of the income or capital of the Trust Fund as the Trustees shall in their discretion determine for the maintenance and benefit of the Settlor in the event the Settlor is successfully reanimated from cryonic suspension. The settlor of such a trust may also wish to reserve a power to revoke the trust to regain control of the trust assets post-reanimation, although technically it may be rather difficult for a person who has been legally dead to exercise such a power. Thomas on Powers (2nd Edition) and similar professional texts are strangely silent on this point! It may, therefore, be best to state it as a purpose of the trust to avoid any doubts.5 Executors may have to grapple with the possibility that a deceased person could appear at some point in future, and they might be upset to find all of their worldly possessions have been dissipated. Perhaps a waiver along with following lines may be in order: In the event following my apparent physical death6 I am reanimated from cryonic suspension, I hereby release, waive and indemnify my executors from any and all claims which I may have against them in connection with the proper administration my of estate in accordance with the terms of this my Will.7 Cloning: it’s like Coca-Cola, but just in another can Ever since Dolly the Sheep emerged from a Scottish laboratory in 1996, scientists have been successful at cloning pigs, deer, horses, and bulls,8 and although human cloning is banned in most countries, some scientists have continued to push the boundaries, with one rogue fertility doctor publicly claiming he had already successfully cloned the embryos of three dead people.9 As of the date of this article there are no confirmed cases of human cloning but that is not to say that the technology does not exist because it certainty does, and putting the scientific ‘gene-e’ (pardon the pun) back in the bottle generally is not so easy. So what could this mean for the future private client practitioner? Let's get creative on the drafting front again. Consider what the objects of a trust look like in the age of human cloning. Assuming such clones have the same legal rights to receive property as do natural persons. I propose: The Beneficiaries of this Trust include: The Settlor; Any issue of the Settlor; Any authorised facsimile10 of the Settlor; and Charities. Secondly, will drafters may have to consider whether clones should be included or excluded from the beneficial class, much like practitioners currently do with the thorny issue of illegitimate children. The primary difficulty (ethics aside) with clones may be the ability to prove their provenance. Settlors and testators should, therefore, be fully in control of the cloning process, thus producing ‘authorised’ clones11 only. To the extent clones can be produced by others or self-replicate, brace yourself for a new age of estate litigation. Trustees of the future may, therefore, be required to vet clones before providing them with any tangible benefits and hopefully some reliable method to confirm the provenance of these beings will emerge alongside their creation. Trustees of the future, however, could be open to criticism if they fail in their KYC12 procedures. Advanced life extension: starts as Coca-Cola, but ends up as Pepsi It is commonplace now for bits and pieces of the human body to be swapped with replacement parts, be it an artificial hip, knee, etc, demonstrating we are rapidly approaching the day when no part of our anatomy will be irreplaceable. Advances in medicine means we are living much longer and healthier lives than our ancestors. Had I been writing this article in the early 1900s I would probably be dead by now, as the average life expectancy at that time was in the low 30s. In the future it is almost certain that our bodies will either be periodically upgraded with synthetic parts, and medical treatments will become far more effective ultimately leading to the possible elimination of all disease (bye, bye charity runs!) and possibly cheating death itself. ‘Ah ha’, you say, ‘but what happens if you get run over by that anti-gravity plasma-fueled bus?’ No problem, for our brain would be backed up on a hard drive waiting to be downloaded into a new body as easily as a movie can be downloaded onto a laptop now.13 Would that then be the moment we completely transcend our human form, and would the destruction of our (first) body still be classified as death? That's only if we decide to continue to exist in the physical world at all. We may instead prefer to exist digitally in a world of our own design by uploading our brain and consciousness into a mega computer ala The Matrix in what is now being referred to as the ‘Metaverse14 by tech nerds.15 So aside from the philosophical implications, what does this mean for the future private client practitioner? Bad news for all you Will writers and estate practitioners; you are most likely going to be out of work, except of the select few clients who prefer to go old school and shuffle off this mortal coil like it's still the 21st century. Unless of course, the law takes the view that uploading your brain to the Metaverse and swapping your physical body for a digital avatar counts as ‘death’. Perhaps we will have to alter our perception of death to include both physical death (ie when we shed our physical bodies, whatever form they may take) and digital death (when we unplug from the Metaverse permanently, either by accident or design). Practitioners of the future might even continue to receive electronic instructions from their clients after their physical death (eg ‘Dear Sir. My nephew James seems to have gone off the rails since my physical death and is spending his inheritance foolishly. Perhaps ease off on those monthly distributions a tad’) and voila—practitioners now have to contend with a living, breathing letter of wishes. Clients of the future may also wish to create clones of themselves as a way to alleviate the grief of loved ones left behind in the physical plane, or as a way to keep their executors/trustees in check.16 There will likely17 be little use for wealth in the digital world in any event, but surely someone has to pay to keep the computer switched on and to install those annoying periodic software updates (careful your digital self doesn't get accidentally deleted—perhaps a post-physical death Will is not such a bad idea after all?). If we opt for the great unplug, our remaining material possessions must pass to someone, so the old-fashioned Will may come back in vogue. But what of trusts? Since trusts in the private client sphere are primarily tools for succession planning it seems unlikely they will be of much use if your clients never actually die, especially where mortal issues of capacity and illness are a thing of the past. Perhaps commercial, asset protection and protective trusts may be the only surviving variants. Even where a settlor of the future wishes to set up a trust for whatever reason, such trusts would need to be designed to support persons who could live hundreds or possibly thousands of years in the physical plane before transitioning to a digital existence, possibly for all eternity18. Assuming wealth may still be accumulated and shared in the future, settlors will need to have very substantial means in order to sustain beneficiaries over their vast dual-lifespans. Trust perpetuity periods will certainly become a thing of the past and given most worldly possessions will be of little use in the Metaverse, it is entirely possible that settlors of the future could look to establish trusts before they transition out of their physical bodies. Look out for provisions to sustain settlors in their digital existence as well as for those family and friends who remain in the physical plane: The objects19 of this Trust are to pay or apply the income or capital of the Trust Fund: To preserve the Settlor’s existence in the Metaverse following his physical death; For the maintenance, advancement, education of or general benefit of the Settlor’s issue prior to and following their physical deaths (if applicable20) in the Metaverse; For the maintenance, advancement, education or general benefit of any authorised facsimile of the Settlor21; and For the benefit of such charity or charities as my Trustees in their discretion determine.22 Artificial intelligence: Pepsi, definitely not Coca-Cola Some say artificial intelligence (AI) will be mankind’s last great invention as the technology will eventually make us obsolete, and let's face it; we humans are a pretty dangerous and illogical bunch, and it is entirely possible AI will conclude we are just pointless little creatures who have outlived our purpose. Alternatively, perhaps humans and AI can coexist and evolve together and learn from each other.23 So how might this affect trust and Will drafting assuming we can avoid an AI apocalypse? Let's start with Wills. Some practitioners may have encountered clients who wish to see their pets cared for after their deaths. Since pets are incapable of receiving property as a matter of law, it is common to appoint a pet guardian to oversee their care and feeding. So there is no conceptual difficulty in my view with a testator making provision for his AI butler. Consider the following: I hereby give the sum of One Million Global Bitcoins to my nephew James on the condition that he agrees to provide a suitable home for my devoted synthetic servant Belvedere and provide him/it with regular maintenance and periodic software upgrades as appropriate. Or if AI beings are autonomous and capable of receiving property, then: I hereby bequeath the sum of One Million Global Bitcoins to my devoted synthetic servant Belvedere absolutely so that he/it may live a life free of servitude to humans. On the trust drafting side, if Belvedere is not capable of receiving property, then an obligation could be imposed on the trustees to provide funding to support Belvedere’s upkeep as follows: My Trustees shall pay or apply such of the income or capital of the Trust Fund as my Trustees shall in their absolute discretion deem fit for the upkeep, housing, and general maintenance of my devoted synthetic servant Belvedere. Conclusion To my friends and clients, please do not think I have gone mad—I am merely thinking ahead. However, if you happen to spot me on the golf course in Scotland mere moments after our video conference call from my office in Cayman, fear not; for my authorized clone is as clever, charming, and efficient as the original model. You are in safe (artificial) hands. Robert Mack is a Cayman Islands attorney-at-law and English solicitor (non-practicing) and heads up the Private Client & Trust Department of the law firm HSM Chambers in the Cayman Islands. Robert is a long-standing STEP member and is the current Secretary for the Cayman Islands branch of STEP. Robert advises high-net worth individuals and their families on all aspects of Cayman Islands trusts and estate matters. He also acts for professional trustees, protectors, enforcers, beneficiaries, executors, banks, foreign law firms, and other professional service providers both within and outside of the Cayman Islands. Footnotes 1. <http://channel.nationalgeographic.com/year-million/> accessed 6 November 2017. 2. <http://www.telegraph.co.uk/news/2016/11/18/cancer-girl-14-is-cryogenically-frozen-after-telling-judge-she-w/> accessed 6 November 2017. 3. Known locally as ‘STAR’ Trusts; an acronym for the ‘Special Trusts (Alternative) Regime,’ now found in Part VIII of the Trusts Law (2017 Revision). 4. As a matter of Cayman Islands law, private purposes need only be lawful, and not contrary to public policy to be valid. See s 99(3) of the Trusts Law (2017 Revision). Also, Cayman Islands private purposes trusts are capable of being perpetual making them ideal for these sorts of arrangements. 5. Hopefully, the law will catch up once these people start coming out of cryonic hibernation to reinstate their legal rights to be recognized as natural persons. 6. Death being a defined term meaning ‘my apparent medical death prior to cryonic suspension’. 7. Claims would probably be time-barred in any event, however, perhaps the law on limitations of actions will evolve to provide a remedy for the defrosted claimant. 8. <https://en.wikipedia.org/wiki/Dolly_(sheep)> accessed 6 November 2017. 9. <http://www.cbsnews.com/news/doctor-makes-human-cloning-claims/> accessed 6 November 2017. 10. Meaning versions of the Settlor which have been created at the Settlor’s direction only. Otherwise, multiple unauthorized versions of the Settlor, including clones of clones, could start popping up everywhere making spurious claims against the trust assets. Perhaps as a boilerplate, it would be an idea for the trust drafter of the future to define such unauthorized clones as ‘Excluded Persons’. 11. Perhaps a lapse of mental capacity by a Testator or Settlor would be grounds for denying the authenticity of any clone if such clone were created at a time of mental incapacity. 12. Know Your Clone. 13. Laugh if you will, but many millions (and possibly billions) of dollars are being expended to accomplish this very task—<http://www.bbc.com/news/magazine-35786771> accessed 6 November 2017. 14. <https://en.wikipedia.org/wiki/Metaverse> accessed 6 November 2017. 15. Elon Musk, the tech nerd’s tech nerd, famously quipped ‘the odds we’re in base reality is one in billions’—<https://www.theguardian.com/technology/2016/oct/11/simulated-world-elon-musk-the-matrix> accessed 6 November 2017. 16. Perhaps such beings could act as protectors or enforcers of the trusts of their creators if the law allows it. It may even be possible for the clone to be remotely controlled from the Metaverse by the physically deceased client thus further blurring the lines between the clone and your physically deceased client. 17. Perhaps the Metaverse will have its own economic system, which may include its own currency. For example, it is now possible to purchase digital structures in the game Minecraft with real currency, so perhaps those in a Metaverse will also look to buy and sell their goods and services and class distinctions based on wealth will be preserved. Old habits die hard! 18. Hopefully, costs of living in the Metaverse are more reasonable than on earth. 19. Given the expressed objects contain private purposes, a private purpose trust will be required. 20. As some people may still choose a natural death rather than transitioning to a digital existence. 21. In case the Settlor has created a clone of himself. 22. Perhaps charities of the future will exist to help fund transitions to the Metaverse for those unable to afford it if the costs are prohibitive. 23. In October 2017, the Kingdom of Saudi Arabia granted citizenship to an AI Robot named “Sophia”. Worryingly, when asked by a CNBC reporter whether she would ever destroy humans, she replied “OK, I will destroy humans”. See http://www.businessinsider.com/sophia-robot-citizenship-in-saudi-arabia-the-first-of-its-kind-2017-10 © The Author(s) (2017). Published by Oxford University Press. All rights reserved.
Trusts & Trustees – Oxford University Press
Published: Mar 1, 2018
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