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Estate Planning and Body Heat

By Michael Asimow, UCLA Law School (January 1998)

The neo-noir Body Heat (MGM 1981) has a captivatingly cynical plot, pleasingly reminiscent of the immortal Double Indemnity. The witty dialogue, photography, Lawrence Kasdan's direction, music, and acting are all superb. Florida sizzles, and apparently nothing is air conditioned. Kathleen Turner is a deliciously erotic Matty Walker. But our focus here is on William Hurt's role as lawyer Ned Racine.

Body Heat presents a fully realized version of a particular kind of lawyerthe kind the profession can easily get along without. A graduate of Florida State's law school, Ned isn't likely to be named FSU alum of the year. He's the sort of small-time lawyer who tends to get into a lot of trouble.

Ned isn't too smart (as Matty says "I like that in a man"). He's pretty incompetent. (He was successfully sued for malpractice a couple of years ago.) He doesn't seem to care about his clients. He really doesn't like being a lawyer much, he remarks at dinner. Judges and other lawyers don't respect himand with good reason. He drinks too much. He jogs faithfully, but lights up a cigarette when he's through. He plays around with loose women. Worst of all, Ned's a little weak in the ethical department. He takes up with Matty, knowing that she is married. And before long, Matty manipulates Ned into killing her husband Edmund to get a hold of his money.

The character of Ned Racine is discussed in greater detail in an article by John Burkoff, If God Wanted Lawyers to Fly, She Would have Given Them Wings: Life, Lust & Legal Ethics in Body Heat, 22 Okla. City U. L. Rev. 187 (1997) (an excellent law and film symposium by the way).

Only law and film nerds would care much about the estate planning aspects of Body Heatbut therein hangs an interesting tale. Not to give away too much, a key plot element concerns Edmund Walker's wills. Edmund's first will left half of his estate to Matty, half in trust for his young niece Heather. But Matty is a bottom-line type of person; she wants to do away with Edmund and get all of his money, not just half. So she steals some of Racine's stationery and drafts a new will, forging the necessary signatures.

Like Edmund's first will, the phony second will divides the loot 50-50 between Matty and Heather, but the bequest to Heather in the second will is deliberately drafted so as to violate the rule against perpetuities. As a result the bequest to Heather in the second will is invalid. Since Matty is the sole intestate heir, she takes the entire estate.

But what was the perpetuities problem in the second will? We're not told exactly, but presumably the trust for Heather included a contingent remainder, where the contingency could not vest during the period of lives-in-being-plus-21-years. Under the traditional version of the rule against perpetuities, the presence of such a contingency (however unlikely to materialize) invalidates the gift (unless the will contained a "savings clause" which obviously it didn't).  [Click here for more information about the Rule Against Perpetuities.]

Trouble is, before the film was shot, Florida had abolished this form of the rule against perpetuities. Instead it took a wait-and-see approach, under which the gift remains valid unless and until the interest actually fails to vest within the perpetuities period. Thus under the Florida rule, the second will was entirely valid and Heather gets half. How could the film makers have made such an error?

My colleague, perpetuities guru Jesse Dukeminier, tracked down the technical adviser to the movie. It seems that the film was originally set in New Jersey which at the time followed the traditional rule against perpetuities. Because of a Teamster's strike in the New York-New Jersey area, the movie was moved to Florida and the story rewritten to occur there. But nobody took into account that Florida's rule is different from New Jersey's.

Moreover, as Jesse points out, even if Edmund's second will was partially invalid because of the perpetuities problem, the doctrine of dependent relative revocation should have applied. Under this doctrine, a will revocation is conditional. If a second will proves to be invalid, it's assumed the testator would want the first one to remain in effect if doing so would more closely carry out the testator's intent than would intestacy. Since it is obvious that Edmund intended to benefit Heather (she got half under both wills), the doctrine should have applied and the bequest to Heather under the first will should have remained in effect. As a result, Heather should have gotten half of Edmund's estate. The technical adviser missed this issue entirely.

Michael AsimowMichael Asimow, of UCLA Law School, is co-author with Paul Bergman of Reel Justice: The Courtroom Goes to the Movies (1996), available at local bookstores or through amazon.com.


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