Thursday, March 3, 2016

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Open Letter To The Trustees Of The Bobby Sands Trust

Christy Walsh writes an open letter to the Trustees of the Bobby Sands Trust


The Secretary, Bobby Sands Trust, 51-53 Falls Road, Belfast, BT12 4PD. 
By Post & Email

Dear Trustees,

I have recently read a statement on Anthony McIntyre’s’ blog The Pensive QuillSands Family Responds To Publication Of Book – ‘Bobby Sands Freedom Fighter’.   

The Trustees’ may recall that in July 2000 Journalist, Ed Moloney, wrote an article for the Sunday Tribune, reproduced on his blog site The Broken Elbow: “Sands’s family considering legal action against The BST”.   Mr Moloney has suggested to me that the legal action did not materialise because Bobby Sands’ family may not have been financially able to meet the high legal costs of such an action.  This letter is my response to the contents of both of the above published articles.  As what I detail below has the potential of giving rise to serious ramifications for the Trustees I am addressing my response as a letter to each Trustee.

In light of the expressed and prolonged difficulties or objections made by the Sands Family dating back for at least 16 years it is my view that the Bobby Sands Trust (BST) should at least co-operate with the family and not be obdurately disdainful of Bobby Sands' next of kin because of their assertions that they are the lawful beneficiaries of the estate.  This is especially so if the BST only exists on account of a technical legal error made in the terms of the originating instrument.  Intransigence on the part of Trustees may contribute to the family’s economic difficulty in having the matter lawfully settled in court.  

Neither an agreement nor faulty Trust that deprived Bobby Sands’ son of his right to inherit from his father would likely be held valid if the matter were to come before the courts.  The purpose of this letter is to urge the Trustees to have the legality of the BST governing instrument properly re-evaluated with regard to probate and intestacy law. Possible financial difficulties preventing any legal challenge by relatives does not relieve the BST and its legal advisors from their responsibility to due diligence in knowing, whether or not, if they may be acting unlawfully on accounted of a flawed Trust.

I understand that Bobby Sands had never expressed that it was his wish to disinherit his son in order to establish the BST.  I note that the idea of a BST was formed sometime after his death and it has summarised its mandate in the following terms:
The Trust holds the copyright on all Bobby’s poetry and prose and was established to publish, promote and keep in print the extraordinary writings of this young Irish man, who from prison isolation became an international figure in 1981, and who to this day continues to inspire Irish republicans in their pursuit of freedom from British rule.


It appears from the Trust's statement above that the BST Trustees only act as custodians of Bobby Sands’ estate and not in the interests of any beneficiaries.  One rule against Private Purpose Trusts is that it must have at least 1 beneficiary to enforce the Trustees obligations.  A trust for an abstract purpose like ‘keeping in print’, or ‘promoting’, Bobby Sands' work, with no beneficiary, is void in law.
    
The BST asserts that it possesses the copyright to all of Bobby Sands' works.  The members of the Trust are complete strangers to the title of Bobby Sands' estate, and, they are not managing the estate in the interests of his next of kin.  This is not a case of a deceased author’s work becoming ‘orphaned’ because no living relatives can be traced. Bobby Sands’ next of kin are known to the BST.  The Sands Family have publically called on the BST to disband, specifically because; it does not act in the interests of the deceased or his next of kin.  

A trustee has a legal relationship with the beneficiaries of a trust.  Like all trusts, the BST Trustees principle obligation would be to account to the beneficiaries to whom they owe their duty of care.  If Bobby Sands’ next of kin are not his heirs and beneficiaries then the Sands Family have a right to know from the Trustees who they allege is the beneficiary of his estate, and, for whom they act.   

For a Trust with no known beneficiary it is notable that it has no fewer than 8 Trustees.  Since Trustees are usually paid for their services it then would appear, in this case, that they are the only drain on the BST’s funds.  Further, what are the BST’s governing rules on the numbers of Trustees and the terms of remuneration of expenses?   What are the BST’s rules on Trustees' length of service?   These questions are also relevant to the legitimacy of the BST.

The BST should act appropriately and respectfully toward Bobby Sands’ successors and not leave them lingering in prolonged years of uncertainty on account of the BST’s own confusion, secrecy and lack of transparency.  If lawful title over Bobby Sands estate has been vested in the Trustees the Sands Family, at minimum, deserves to have sight of such proof confirming that, as the deceased’s next of kin, they have been lawfully disinherited.   The BST is potentially responsible for serious interference with the private life of Bobby Sands’ relatives’ right to inherit.

The Trustees should also consider that in the 1980s any Lawyers acting on behalf of the proposed Trust may have been confused at that time as perhaps were the 
relatives, friends or associates of Bobby Sands.  Fundamental mistakes made on how to administrate the intestate estate and any copyright, I believe, are inherent in the trust’s instrument and thus the problems today.  One basic error that immediately appears obvious is that the Lawyers failed to properly ascertain the precise identity of all relevant kin, and, who among them was Bobby Sands’ actual ‘priority’ successor in title.   The rights of the deceased’s son were not taken into account.

There is no doubt that Bobby Sands' son would have been entitled to a grant of representation had any lawyer considered his interests in his father’s property.  Another possible error is that, if, for example, one of Bobby Sands’ sisters had agreed to the setting up of the Trust, then that would not have deprived her, or any other relative of their rights as beneficiaries if the focus of the Trust was only on printing and promoting the work; that is because that would have been a natural pursuit of the BST without need to be specified in the originating instrument. 

As a Trustee it is relevant for you to know that in cases where a deceased died after 1st January 1956 intestate, and domiciled in the North of Ireland, their spouse, children, brothers or sisters are, in that ‘priority’ order, the lawful successor/s of the deceased’s estate and not any formulated Trust devised by unrelated associates.  Hence, Bobby Sands’ son was, and is, the lawful successor in title of his father’s estate.  However, until now you may have been misinformed or misguided on the legal status of the BST because it has been in existence for so long without challenge but that does not mean that it was formed in accordance with the wishes of the deceased Bobby Sands, or, his lawful successor.  

If I am correct then each Trustee could risk personal liability for gross negligence amounting to fraud should you wilfully ignore valid evidence or facts of law that may subsequently come to your notice during your service as a Trustee.  If Bobby Sands’ next of kin still retain their right to the copyright then I would urge each Trustee to consider the potential for personal criminal liability for involvement in copyright piracy, infringement, exhibiting, distributing, depriving or otherwise prejudicing the true copyright owner/s of Bobby Sands work.   By this, I am not suggesting that any member of the Trust has knowingly acted in bad faith to date but once the Trustees become aware of such a scenario then they would be foolish not to at least have the BST’s legal standing re-evaluated.

Even if the risk of any criminal liability is remote, civil liability may not be, in the event that Bobby Sands’ next of kin are ever in a position to finance a legal action against the BST.  Should that happen, then the Trustees are personally liable and could be faced with extra costs and damages for any unnecessary delay they cause in
releasing control of Bobby Sands copyright material back to his next of kin and rightful heirs.

If my concerns about the legitimacy of the BST are accurate then ‘printing and promoting’ Bobby Sands' work is none of the Trustees business without formal consent from Bobby Sands’ successor.  As successor in title of his father’s work, Bobby Sands’ son’s ownership of copyright still subsists.  There are members on the BST who are themselves published authors and have children of their own.  It would be in their personal interests to know that someone more meaningful, like their own children, will inherit copyright of their work when they die and not a motley crew of former associates like the self-styled Bobby Sands Trust.  

I would re-emphasis to the Trustees that in the absence of any written will the law is explicit on who is a deceased’s priority successors in title.   Bobby Sands’ son’s current deprivation from his father’s estate may have originally arisen as a result of possible confusion or lack of legal representation when he was a child.  If there has been any misappropriation in error of his father’s estate then I am sure the Trustees’ will now do the honourable thing and endeavour to put matters right. 

Yours Sincerely 
Christy Walsh
2nd March 2016

14 comments :

Gary McCool said...

Excellent appraisal Christy of the legality or lack of it in the Bobby SandsTrust as presently pertains. Thank you for researching it and bringing it to us in such a clear and concise way.

marty said...

Christy as meticulous as ever ,the only thing is Christy the arrogant bastards know full well that returning Bobbys property to his family would be an admission that they BST ie;,quisling $inn £eind do not represent or indeed speak for the views held and died for by Bobby, this is not the type of publicity that they could accept at the mo ,maybe after the ides of March or when they shaft Adams but until then Bobby and his memory will be the major asset to quisling $inn £eind PLC.or as I,m sure they say in the RAFIA its not personal its just business,

AM said...

A tightly reasoned piece Christy. Ruth D Edwards and the revisionist writer Daniel Dudley Morrison have been arguing over the Trust on Twitter

mcclafferty32 said...

Well done Christy. Thank you.

DaithiD said...

An impressive grasp of detail again Christy. I imagine the Trustees underwear will have a few more skid marks after recieiving this.

Christy Walsh said...

Thanks guys for your comments.

AM

Just checked twitter - and saw these 3 comments on twitter which confirm that there are irregularities with the BST Trustees understanding of their role as trustees.

For instance take these 2 comments:

Danny Morrison ‏@molloy1916 11h11 hours ago

@RuthDE Bernadette and Marcella were on the Trust but left in the early days of the peace process. They weren't excluded.

@RuthDE Were'nt excluded. Re royalities and Gerard, ask this question to Marcella and Bernadette, then come back to me

Danny Morrison proves my point and he raises another potential flaw in the Trusts construction incorporating a conflict of interest where trustees could be both trustee and beneficiary. The Trusts is clearly wonky -especially if he does not know ere the royalties are going.


I then spotted this post of another BST Trustee giving away the Trusts assets to a political party. This could perhaps be irrefutable evidence that Sinn Fein is the BST's secretive beneficiary. Otherwise this is an unquestionable breach of any trust to give away freebies that are not in the interests of rightful beneficiaries.

Gerry Adams Verified account ‏@GerryAdamsSF 14 Feb 2015

Tom Williams letter 2 IRA Chief of Staff Hugh McAteer. Presented 2 Sinn Féin by Bobby Sands Trust. Grma clann Hugh.
https://pbs.twimg.com/media/B9ztOmhIIAEM_SH.jpg

AM said...

Christy,

I think Morrison's auld Liarette Syndrome is at him again

Christy Walsh said...

AM

Breadcrumbs like this one must be scattered everywhere and clearly show that the Trustees do not understand their role as Trustees, which would be a flagrant abuse of the trust that has been vested in them, OR, the Trust is null and void. I do not know who the woman is in the picture is she a Trustee presenting the award to Gerry Adams or is she a member of Sinn Fein and Gerry Adams is presenting it to her??

https://twitter.com/GerryAdamsSF/status/566588488485965824

Christy Walsh said...

Just clarify some of the actual duties of a trustee, they MUST: 1)Faithfully carrying out the terms of the trust. 2) Not treat the trust funds like their own the funds must be kept in its own separate account. 3) keep the Trust's assets safe and to invest and manage the assets in accordance with the terms of the trust and the law (bad investing can result in the Trustees having to make good any losses: So is Sinn Fein refused to return any gifts from the BST then the Trustees are liable for the value of the gift). And 4) Keeping detailed records of assets, income received and expenses of the trust.

That the BST does not know that it cannot gift or donate any of the Trust's assets away shows that the Trust out of control and in bad need of re-evaluation.



Christy Walsh said...

One other point -that 2 Trustees have shown clear ignorance of the burden vested in them would suggest that they have no real clue or grounds to say who is or who is not the lawful beneficiaries.

mal higgins said...

It really shows the contempt that the current trustees of BSP have for the relatives of Bobby Sands. Exploiting his memory and writing for personal gain is really not on. If they had any sense they should hand the whole Trust over to the Sands family but for obvious reason I can’t see that happening without a legal fight.

Niall said...

Christy,
A very well written article outlining the potential failings of this trust, in its establishment, operations and the potential lack of understanding of the legal role expected of a trustee. If we consider those legal points as formidable legal weapons to mounting a challenge against the trust and its current practices, surely we should prior to this, test just how relevant or formidable are the points as potential legal weapons? Forgetting about finances for the time being that is.
Having no legal experience or knowledge on such matters I can’t give a professional opinion, but I would surmise that this motley crew of vipers didn’t originally establish the trust without seeking sound legal advice and guidance. I can’t imagine that they had the know-how or the where-with-all to establish this themselves.
Quite possibly the family of our very own DPP may have been consulted. I have no intention of detracting from your article but to the lay person reading it, what you have outlined seems blatantly obvious and incredulous that the trust has been operating in this state for so long. And it may very well be a true reflection of the current trusts status but as I previously asked, are these points strong enough to warrant a spirited legal challenge that will face a substantial legal defence?
I am not adverse to a challenge being mounted but I am of the opinion where before doing so the cards should be favourably stacked. An unfavourable verdict may do more damage to the Sands family and Bobby Sands legacy than not just that of a monetary value.

AM said...

Mal,

it comes down to that unfortunately, contempt. Trust members were very critical of Richard O'Rawe for not going to the families of the dead hunger strikers in advance of his book. That charge was self serving as this episode shows clearly that the BST has no regard for the family. Morrison in his time honoured clumsy manner immediately tried smearing them. I don't believe writers, whether O'Rawe, or the people who created the comic strip, are obligated to go to the families of the dead on the basis that I think it can end up creating a veto on the creative freedom to write. But I do feel that if you are to serve on a Trust it does obligate you to have the trust of the family. The BST clearly does not have that trust. They should step down and aside. It is something common courtesy would prompt a normal people to do.

Christy Walsh said...

Thanks Niall for raising these questions. First off we are dealing with a political party(or machine) with civil and human rights uppermost in its mandate so would the Trustees really humiliate and disregard the family of one of its most revered martyrs? To date, yes they would, but, then again to my knowledge the family's difficulties have never really been aired in public before. Between saving face and doing the right thing the prudent approach for the BST is through mediation between the BST and Bobby's family and never let the case see the inside of a court.

I have had my scrapes with the legal system so understand your reservations but I would put every penny I had on the Sands Family to win hands down. If the BST had legal claim over the family the Trust's solicitors would have presented it to the family to avoid the very public disdain that the BST now finds itself in. Here's why -the BST cannot win either way no matter the outcome in court the BST's reputation would be so sullied in the public mind -akin to the Widery Report -the Paras were innocent but we all knew since the 1970s that they committed cold blooded murder.

I would imagine that the BST is already conducting an in-house re-evaluation because my emphasis is not on possible errors or mistakes of the past but on how they move forward from here -one thing having plausible deniability but it's something entirely different to be clobbered over the head with it -they can't plead ignorance.

Lets hope they see sense sooner rather than later.