Superwills!Published on: 06 January 2017
Because I am a little obsessed with superhero films, I thought it would be fun to imagine what kind of will someone like Tony Stark (a.k.a. Iron Man) might need. As a superhero, he faces a high degree of peril every day. It would therefore be particularly important for him to have arranged what should happen in the event of his death so that his family, friends, employees and team mates were all provided for in accordance with his wishes.
There are a number of considerations that should be taken into account when creating your will, and I have highlighted below the special considerations that would need to be taken into account in Iron Man's case. Please note that for the purpose of this blog, I have assumed that the will would be created under and be subject to English Law.
Business & Personal Assets
Tony Stark, presently unmarried, is one of the richest superheroes in the superhero universe, with an estimated wealth of $12.4 billion according to the Times (more than Batman!). This level of wealth makes things easy in the sense that Tony can probably give tremendously generous gifts to everyone he has ever met and still have plenty left over.
However, this level of wealth will also result in a high level of tax liabilities. This means that it would be sensible for Tony to review how he holds his assets to ensure that he minimises the potential tax bill. Assuming that he has to pay inheritance tax on the whole of his estate under the usual rules and that no assets are held in trusts or owned by his company, he would have to pay inheritance tax at 40% of the value of his assets over the threshold of £325,000 (i.e. nearly $5 billion!). However, given Tony's philanthropic nature, he would likely want to take advantage of charity relief by donating 10% of his estate to charity (roughly $1.2 billion), resulting in a tax rate of 36%.
I considered whether Tony might have more nil rate band to play with after the introduction of the Residence Nil Rate Band in 2017/18. However Tony's wealth is so great he would be disqualified from using this new allowance.
Probably the most interesting and important asset that Tony owns is his armoury of iron suits. Tony also assumedly owns the intellectual property rights to the technology behind his suits and other gadgets.
He will need to think carefully about what should happen to these when he is no longer around. Would he want to bequeath the suits and technology to a trusted ally such as James Rhodes? If he did, would he want Rhodes to have complete control of the suit and be able to give or leave it to anyone? What would he want to happen if Rhodes died before him? He could of course leave a long list of heroes who will inherit the suit if their predecessor passes away.
It might be easier to instead create a trust with the power to award the suits to whoever is worthy and to equally take them away from those who are not. He would have to think carefully about who the trustees should be in order to ensure that they would be able to carry out his wishes.
An alternative would be to leave instructions that all of the suits and technology should be destroyed immediately following Tony's death. He would have to ensure that clear instructions were given as to how the suits should be destroyed and that he provided the executors with access to whatever resources were needed to destroy the suits.
Obviously Tony would want to ensure that his long-term girlfriend Pepper Potts was well-provided for. He also seems to be the principal funder of the Avengers and will probably want to ensure that they continue to be provided for after his death. This would raise a number of difficulties as he would have to define what 'the Avengers' are. He could choose to list the specific team members that should benefit in the event of his death. He would then need to consider what should happen to that team member's share if they died before him. For instance, assuming that he awarded $1 billion to the Avengers consisting of Hawkeye, Hulk, Thor, Black Widow and Captain America and then Hawkeye died, would he want the $1 billion to be split between the surviving members or for Hawkeye's share to go to Hawkeye's children?
Listing all the individual members would also not allow for the continual changeover of members that is traditional with the Avengers. Assuming that Tony's aim is to ensure that the Avengers continues to function as a well funded organisation, rather than to give specific gifts to his team mates, it would probably be sensible to set up a trust for this purpose, the terms of which could allow for the change of members/beneficiaries, including the power to add additional members to the Avengers Team where appropriate.
It would also be worth finding out whether the Avengers could be considered a charitable organisation. To claim charity tax reliefs and exemptions, an organisation must be established for charitable purposes only, subject to either a relevant Court in the UK or EU, registered with an appropriate regulator (where applicable), run by fit and proper persons and recognised by the HMRC as a charitable organisation. There are 12 possible charitable purposes set out in the Charities Act 2011, which include pursuits such as preventing or relieving poverty, advancing education and crucially in this case, the advancement of health or the saving of lives. It could be argued that the crime fighting pursuits of the Avengers would be considered a charitable purpose as their main goal is to prevent unnecessary loss of life and/or human suffering. If Tony could successfully argue that the Avengers are a charity then there would be no inheritance tax due in relation to the gifts for them.
However, we might not be able to successfully argue that the Avengers are a charity. After all, the Charity Commission recently decided that the Temple of the Jedi Order should not have charitable status (see LB blogs passim).
We also have not set up anything to help Tony make adequate provision for his girlfriend. My colleagues came up with a clever real world solution to this fictional problem. This would involve Tony marrying Pepper Potts, which would mean he could leave her his estate and this would be exempt under the spousal exemption. If the property left to Pepper Potts was placed in a trust and she was given a revocable life interest in the trust funds, it would initially benefit from the spousal exemption. Later on, the trustees could revoke Pepper's life interest and 'drop down' capital from the Trust funds to particular beneficiaries (e.g. Captain America, Hawkeye etc). These would be potentially exempt transfers. Assuming that Pepper lived for at least 7 years following these gifts being made, no inheritance tax should be due.