Lisa Marie Presley and the Lessons to Learn for your Estate Planning

The world of Contentious Probate was “All Shook Up” last week when it was reported that Priscilla Presley, wife of Elvis, was challenging the validity of her late daughter Lisa Marie’s Will.

Lisa Marie, the only child of Elvis and Priscilla passed away on 12 January aged 54 and had made provisions in her Will for a living trust.?A living trust is a form of #estateplanning that refers to arrangements when assets such as property, investments or money are held in trust which allows a person to control their assets while they are alive but have them distributed once they pass away.

In her Will of 1990, Lisa Marie named her mother Priscilla as a co-trustee of such a trust. However a document that came to light in March 2016 purports to remove the elder Pressley as a trustee. Among the many issues complained of regarding Priscilla’s removal as a trustee was a failure to notify Priscilla of the change, a misspelling of her name in a document allegedly signed by her daughter, as well as a signature by Lisa Marie that was "inconsistent with her usual and customary signature". While the facts of the Presley family dispute are shrouded in secrecy, it is clear that one of the issues in dispute is whether there has been a failure in the execution of the formalities involved in amending or creating a Will.

Ramifications for English Trusts

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While the dispute surrounding Lisa Marie’s Will is subject to the American legal system, there are some parallels with English law and this case highlights the extreme importance in making sure that all legal documents are executed correctly and all formalities are adhered to carefully.

As a Will is a public document and will eventually be available for inspection, many people are motivated to keep the identity of any beneficiaries outside the Will and therefore secret. One of the ways one can achieve this is by creating a secret trust.?

Under a secret trust, a gift is made to a third party which is disclosed in the Will. This is on the understanding that the gift is received on trust for the ultimate beneficiary. As the trust is not included in the Will, there is no reason to disclose publicly who the ultimate beneficiary of the Will is. This can be useful when the intended beneficiary or beneficiaries are likely to demand their share of the estate in an aggressive manner which can complicate the probate process. When a secret trust is used, the ultimate beneficiary does not need to be informed of the gift and as such this problem is avoided. A secret trust is useful when one wants to avoid disputes amongst potential beneficiaries or people knocking at their door demanding money.

Requirements of a valid Secret Trust

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As implied by the name, a secret trust is only a secret if its existence is not publicly disclosed via the Will. If the Will discloses that there is a trust but not its objects or terms it is known as a half-secret trust.

Both forms of secret trust require that (1) the testator intended to create a trust, (2) that he communicated the terms of the trust to the trustee and (3) that the trustee accepted those terms. Where there is significant difference is in relation to the issue of the communication of the specifics of the trust.

In relation to a fully secret trust, it does not matter whether the trust is communicated and accepted before or after the execution of the Will so long as it occurs during the testator’s lifetime.

Case law regarding a half secret trust suggests that the critical part of creating a half-secret trust is the communication to the trustees of the trusts existence. That communication

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Therefore, a half secret trust will fail, and the assets distributed under the trust will fall into the residual estate if the details of it are not communicated to the trustees until after execution of the Will.

Whereas Elvis may suggest that the Devil is in Disguise, when it comes to estate planning and legal documents, the devil is in fact in the detail.?

Our contentious probate team are specialists in analysing whether purported testamentary documents, such as Wills and trusts, are susceptible to challenge.?Please contact Ian Pearl or David Bondt if you would like any advice.