Authored by Rida Raza and Sarah Mumtaz.
Sarah Mumtaz Law Offices.
When considering estate planning, clients often focus on tangible assets like their real estate, bank accounts, and personal belongings. But for creators, entrepreneurs, and professionals, intellectual property (IP) can constitute a significant portion of an estate, and if not properly addressed, may be lost or mismanaged. Intellectual property can continue to generate revenue, create reputational value, and form part of an enduring legacy.
Intellectual Property as Part of Your Estate
In Ontario, intellectual property is considered property for the purposes of estates law. Under the Succession Law Reform Act, RSO 1990, c. S.26, an estate includes both tangible and intangible assets. Intellectual property rights, including copyrights, trademarks and patents, may therefore be transferred via a will.[1] If a testator dies intestate, their IP rights will be distributed pursuant to the intestacy rules in Part II of the Act, which may not reflect the intended management or beneficiaries of these assets.[2]
The management of IP post-mortem often requires specialized knowledge. For example, licensing, enforcement against infringement, and royalty collection are ongoing obligations that cannot be treated like a simple bank account. Failure to designate a capable executor or trustee with instructions for administration may result in underutilization or devaluation of the estate’s IP portfolio.
Copyrights Have Special Rules
Copyrights represent one of the most common forms of IP, governed federally by the Copyright Act, RSC 1985, c. C-42.[3] Copyright subsists for the life of the author plus 70 years (s.6) and certain moral rights are inalienable even after death (s. 14.1).[4] For copyrighted works assigned during the testator’s lifetime, the estate may retain reversionary interests after 25 years under s. 14.1 of the Act, affecting long-term licensing arrangements and royalty streams.[5]
The Courts have also underscored how intellectual property rights, particularly copyright, remain a critical estate asset requiring careful administration.
In Maier Estate v Bulger, 2024 FC 1267, the Federal Court dealt with a post‑mortem copyright infringement dispute involving the photographic works of the late Vivian Maier. The decision reaffirmed that copyright subsists independently of physical ownership of the tangible mediums containing the works and that the estate, as copyright owner, retained the exclusive rights to control reproduction, distribution, and public exhibition of the works despite transfer of physical negatives and digital files.[6]
The Court engaged in a detailed analysis of both primary and secondary infringement under ss. 3 and 27(2) of the Copyright Act, highlighting that an estate’s copyright interests continue to attract legal protection and remedies, including injunctions and statutory damages, long after the author’s death.[7]
This case illustrates that executors and trustees must appreciate the distinct legal character of IP rights and ensure that testamentary documents, estate administration strategies, and enforcement actions reflect those rights’ continued vitality and enforceability under federal law.
Personality Rights
Beyond statutory IP rights, estates may also hold interests in the personality of the deceased, particularly where the individual’s image, name, or likeness retains commercial value.
Canadian jurisprudence has recognized the tort of misappropriation of personality, first articulated in Krouse v. Chrysler Canada Ltd. and applied in Athans v. Canadian Adventure Camps Ltd.[8] Scholars have further observed that courts have extended these rights post-mortem, allowing estates to assert proprietary interests in the deceased’s persona for commercial exploitation.
Unlike personal privacy rights, which generally lapse upon death, personality rights can descend as intangible property, forming part of the estate’s assets. Failure to explicitly address these rights in a will or estate plan can lead to disputes among beneficiaries or third parties over licensing, endorsements, or other commercial uses.
For practitioners advising clients in Ontario, both statutory IP rights and personality rights must be considered. This dual consideration underscores the importance of drafting clear testamentary instructions, appointing capable executors, and coordinating with IP counsel.
Proper planning ensures that both copyright and personality rights are preserved, monetized appropriately, and transferred according to the testator’s wishes, thereby protecting the estate’s value and the legacy of the deceased.
Planning Ahead is Essential
From a legal perspective, IP is not a mere intangible; it is a property right capable of generating income, conferring reputation, and requiring active management.
Effective estate planning should therefore include clear testamentary provisions that identify IP assets and designate intended beneficiaries, ensuring that these rights are transferred according to the testator’s wishes.
It is equally important to appoint knowledgeable executors or trustees with the authority and expertise to license, enforce, or assign intellectual property rights. Testamentary instructions should also address the continued commercial protection of these assets, including the management of royalties, the establishment of royalty trusts, and the facilitation of ongoing creative production.
Coordination with professional advisors, such as intellectual property lawyers, accountants, and estate planners, is essential to ensure compliance with both federal and provincial law and to address the complexities inherent in post-mortem IP administration. Without such foresight, IP rights risk being lost, mismanaged, or underutilized, which can significantly diminish the estate’s value and frustrate the testator’s intended legacy.
Conclusion
For practitioners advising clients in Ontario, intellectual property should not be overlooked in estate planning. Properly addressed, IP can continue to benefit beneficiaries and preserve the value of the testator’s creative, professional, or business achievements. Ensuring a comprehensive estate plan that explicitly addresses IP rights protects both the estate and the legacy of the decedent.
[1] Succession Law Reform Act, RSO 1990, c. S.26. The inclusion of intellectual property within the scope of estate assets under s. 2 of the Succession Law Reform Act does not arise from any express reference to intellectual property. Rather, it flows from the Act’s broad and non-exhaustive definition of “property,” which failed to exclude intellectual property.
[2] Ibid at sections 44-49.
[3] Copyright Act, RSC 1985, c. C-42.
[4] Ibid at s. 6; ibid at 14.1.
[5] Ibid at 14.1.
[6] Maier Estate v Bulger, 2024 FC 1267 at para 202
[7] Ibid at para 35.
[8] Krouse v. Chrysler Canada Ltd. et al., 1973 CanLII 574 (ON CA) at para 3; Athans v. Canadian Adventure Camps Ltd. et al., 1977 CanLII 1255 (ON SC) at para 4.