This is a three-part blog series that seeks to explore the manner in which one can conduct estate planning with respect to their copy of the popular 2020 Nintendo Switch video game Animal Crossing: New Horizons. Part I will discuss the importance of this topic and describe the applicability of a non-charitable purpose trust to this type of estate planning. Part II will examine the practical considerations for operating a non-charitable purpose trust for this purpose. Part III will explore the duties and powers that the trustees of such a trust would have, as well as how to enforce their obligations.

For greater certainty, the principles discussed in this blog post, while focusing on Ontario and Canadian law, are based on common law principles. Many other common law jurisdictions (such as the United States and the United Kingdom) share similar principles.

Note also that the provisions here are generally applicable to one’s copy of any entry in the Animal Crossing franchise.

Introduction

Often in life we find ourselves faced with a number of responsibilities: family, friends, career, volunteer commitments, and personal goals, among them. We certainly take on some responsibilities more willingly than others. Interestingly, there are more and more people who have chosen to take on a rather significant responsibility: the establishment, development and maintenance of a virtual remote island community inhabited by various species of cute, anthropomorphic animals.

People who are taking on this responsibility are doing so through their engagement with the video game Animal Crossing: New Horizons for the Nintendo Switch home console. For those who have no idea as to what I’m writing about, the Animal Crossing franchise, which Nintendo began by releasing Dōbutsu no Mori (Animal Forest) in Japan in 2001 for the Nintendo 64 home console, is a life simulation video game, similar to franchises like The Sims or Second Life. Animal Crossing is well-known among gamers for its peaceful atmosphere, memorable characters and overall adorable aesthetic.

In Animal Crossing: New Horizons, the player controls a humanoid villager who moves to a deserted island at the behest of the entrepreneurial tanuki[1] Tom Nook. Tom Nook builds and mortgages a home for/to the player, and tasks the player with the development of the island by inviting other villagers to reside on it, landscaping roads and developing buildings, and contributing to its cultural assets through its museum. The game is heavily based around social interaction between the player and other villagers, including social interaction between different players by means of an internet connection.

Why Are You Writing About This Silly Topic?

To all of the regular readers of this blog who aren’t gamers, make no mistake: this is a very relevant and timely topic. Animal Crossing has steadily become a cultural phenomenon since its 2001 debut, and in 2020 it has certainly reached an apex. Animal Crossing: New Horizons released less than two months ago, on March 20, 2020. Based on the sales data available as of the date of this blog post, in its first month of release, Animal Crossing: New Horizons broke the record for the most digital copies of a game sold in a single month, with 5 million copies sold worldwide. It has already surpassed the sales of all other entries in the Animal Crossing franchise. And even in the midst of COVID-19 making retail stores less accessible, Animal Crossing: New Horizons has already sold more physical copies in Japan than any other Nintendo Switch title in history.

In fact, the COVID-19 pandemic is undoubtedly a contributing factor to the game’s success. Now that people are limited in their ability to experience the real world, many of them have decided to take refuge in a virtual oasis, and, quite honestly, are finding it preferable.

If You Care About Your Island, You Should Plan for Its Continued Maintenance

That being said, the purpose of this blog post is to advise players of how they can set up their estate planning for when they depart both the real world and the virtual world for the afterlife. While players, as human beings, are still limited in lifespan by their biology, Animal Crossing: New Horizons is a game that never ends; as long as there is accessible electricity and a functioning Nintendo Switch, a player’s island and their furry friends are, in theory, immortal.

As players all over the world are undoubtedly forging significant emotional bonds with their villagers through all of the newfound time they now have to develop their islands (as a result of the pandemic), such players may wish to provide for their villagers after their deaths. The villagers come in a variety of over 300 anthropomorphic animals complete with their own unique personalities. They have their own homes, they like receiving gifts, and they’re big fans of social events. While some may scoff at the villagers as nothing more than aesthetically-pleasing compilations of pre-determined dialogue and simplistic code, a simple Google search of “Animal Crossing” will quickly reveal the emotional and cultural impact that the franchise’s characters have had on human beings all over the world.

The Issue With Gift-Giving In This Context

As suggested above, the overarching problem for this type of estate planning is that the villagers of one’s island, and even the island itself, could not properly be considered beneficiaries (or, in other words, legal recipients of gratuitous transfers of property) in the legal sense of the word. Beneficiaries, generally speaking, can only be legally-recognized persons, such as friends, family members or legally registered corporations. Even gifts to an “association”, or, in other words, a group of people that have not officially registered such group as a corporation, can lead to gift-giving issues.

With respect to gift-giving in this context, there exists another significant consideration (which I will elaborate upon in the other blog posts in this series): one usually, in their estate planning, gives gifts of cash, real estate, personal property or other assets that exist in the real world to their loved ones. The problem with Animal Crossing villagers is that, as kind-hearted as they are, they cannot effectively receive these gifts as there is (currently) no way to convert assets from the real world into some sort of digital format to make such villagers prance with glee in the ordinary course. And although estate planning for digital assets is becoming more and more prominent, things like social media accounts or website URLs face similar conversion problems.

The Use of a Non-Charitable Purpose Trust

In any event, considering that one’s villagers and their island, as a collection of data, are capable of existing for eternity, static or lump-sum gifts would likely be insufficient to support the continued operation of the game indefinitely. What one would likely want to do is establish a trust for their villagers and their island. For those who are unfamiliar with trusts, very briefly, a trust is a relationship (not a separate legal entity) between a settlor (one who provides property to the trust) and one or more trustees who hold the property for the benefit of the beneficiaries (the individuals who are to ultimately benefit from the trust property). While the trustees hold legal title to the trust property, they are legally obligated to deal with the property in accordance with the trust terms.

As I mentioned above, the problem with a trust in this context is that the villagers and island would likely not be considered beneficiaries in the eyes of the law because they are not legal persons. However, there are many different types of trusts, including trusts for purposes, and not necessarily for specific beneficiaries.

Purpose trusts can be divided into two categories: charitable purpose trusts, and non-charitable purpose trusts. Both categories are relatively limited in terms of the types of purposes for which trusts can be legally constituted. Charitable purpose trusts would likely not be helpful in this context, as they, generally speaking, need to provide a “public benefit” to be valid. Considering that islands in Animal Crossing: New Horizons can only have a maximum of 10 villagers, it would be hard to argue that such a trust would provide a benefit to the “public” and not just to the villagers.

Instead, it seems that a non-charitable purpose trust may be effective here. The English common law, which is certainly valid and applicable with respect to Canadian common law, has only recognized a few valid non-charitable purpose trusts:

• the erection of a monument at a gravesite;
• the maintenance of a gravesite; and
• the care of animals (or in other words, pets).

These exceptions have been said to be “historical anomalies, derived from upper-class English social life and judicial attitudes.”[2] Canadian courts have accepted the validity of these non-purpose trusts.[3]

Of course, while there has not (yet) been a court-verified acceptance of a non-charitable purpose trust for the purpose of supporting the non-playable characters or environment in one’s life simulation video game, one could definitely argue that trusts for the care of animals, a topic previously explored on this blog, is very well applicable to this context. I mean, the franchise is called Animal Crossing, after all.

So What’s Next?

Now that we know that a non-charitable purpose trust would likely be the best estate planning solution to this problem, we need to figure out what such a trust would look like. In the next entry in this blog series, we’ll discuss some of the practical considerations for such a trust both from a trust law perspective and taking into consideration that one cannot necessarily use money and other assets in the same way that they normally would be able to for such a trust. However, Animal Crossing does use a currency called “Bells”, so don’t worry; there’s a lot that we can do here.

Whether you’re unfamiliar with video games and/or unfamiliar with estate planning, this may seem like a lot of information. I encourage you to buckle up; the real substance of this nuanced and complex area of estate planning is just on the horizon.

[1] A tanuki is a species of Japanese raccoon dog.

[2] Mark R Gillen and Faye Woodman, eds, The Law of Trusts: A Contextual Approach, 2nd ed. (Toronto: Emond Montgomery, 2008), Chapter 5 on “Purpose Trusts” (prepared by James R Phillips) at 217.

[3] Olivia Holzapfel, Sheena Lessard & Katerina Svozilkova, “Protecting Animals in Ontario: Time to Adopt Pet-Trust Legislation” (2016) 35:3 ETPJ 311 at 320-325.