As The New York Times recently reported, the will of Harper Lee, author of To Kill a Mockingbird, was recently unsealed in connection with a lawsuit seeking access to the document. Ms. Lee died a resident of Monroeville, Alabama, and, as in Colorado, wills in Alabama are typically considered to be public documents. However, the personal representative of Ms. Lee’s estate obtained an order from a Monroe County, Alabama probate judge to seal the will after her death in 2016. Ms. Lee closely guarded her privacy during her lifetime, and the personal representative cited concerns about the “potential harassment” of those named in the will as a reason for sealing it; Ms. Lee’s family members were also in favor of sealing the will.
Colorado law also allows the probate court to seal a will or other probate documents in order to protect a person’s privacy interests. The Colorado Supreme Court’s Chief Justice Directive 05-01 sets forth the state’s policy on public access to court records. Section 1.00 of the Directive explains that the purpose of the policy is to provide “a comprehensive framework for public access to court records” in a manner that, among other things, minimizes risk of injury to individuals and protects individual privacy rights and interests. The Colorado Rules of Probate Procedure and Colorado Rules of Civil Procedure both contain rules regarding placing documents under security that are consistent with this framework. In particular, C.R.P.P. 20 provides that court files may be placed under security “for good cause shown,” and C.R.C.P. 121, § 1-5 allows a court to enter an order limiting access to a file when the harm to the privacy of the person in interest outweighs the public interest.
Turning back to Ms. Lee’s will…despite the privacy concerns surrounding the document, The New York Times filed a lawsuit seeking access to the will as a public record. The Times argued that “Ms. Lee’s privacy concerns were no different from those of others whose wills are processed through the court system.” Prior to depositions in the case, Ms. Lee’s estate agreed to unseal the will, and the Alabama probate court did not rule on the issue.
The unsealing of the will revealed that it was a pour over will that left the estate to the Mockingbird Trust, a trust established by Ms. Lee in 2011. Of course, the trust agreement is a private document, so the will itself did not shed much light on the distribution of the estate, including Ms. Lee’s valuable literary papers. While the will has been characterized in the press as being “strikingly opaque” and as having “a lack of transparency,” readers of this blog will know that there is nothing unusual or suspicious about this type of estate plan. Pour over wills typically do not contain much, if any, information about the ultimate disposition of the testator’s assets, as those directions are contained in the trust.
Now that the will has been unsealed, it will be interesting to see if there is any additional litigation surrounding Ms. Lee’s estate or access to her personal documents.
