A hunk, a hunk of burning litigation

A long time ago – around the time I was born, actually – there was a young man from Mississippi who had some success as a singer. He bought a nice house in Memphis, married a beautiful actress, and had a daughter. And then at the age of 42 he died, leaving most of his assets in trust for his then-young daughter.

I'm talking, of course, about Elvis Presley.

You might have picked up in the news recently that his daughter, Lisa Marie Presley, died unexpectedly at the age of 54. You might or might not realize that there is a court case going on regarding her trust. And the issues it raises are quite interesting.

Lisa Marie was still young when her father died, and he left a significant trust for her. Eventually there were two co-trustees. One of them was her mother, actress Priscilla Presley. When you have a trust, the trustee is who manages the trust. The beneficiaries are who is supposed to benefit from the trust (in other words, who the money is held for). The beneficiaries are Lisa Marie's children.

As an adult, Lisa Marie was entitled to change the trust. After she died, her mother found out, to her apparent shock, that the trust had been changed in 2016. Specifically Priscilla had been removed as a trustee. And this is one grandma who, apparently, is not going down without a fight.

Priscilla is challenging the amendment, not the underlying trust itself. There is no question that Lisa Marie had the right to change the trust. But did she? According to her mother, there are reasons to believe that the amendment might have been made when Lisa Marie was incompetent or drugged, or perhaps she didn't actually sign the amendment at all.

As proof, Priscilla points to the following: the signature on the amendment is not Lisa Marie's regular signature. The amendment is not witnessed or notarized. Priscilla's name is misspelled, and Lisa Marie certainly knew how to spell her own mother's name.

And then there is a technical argument: according to the terms of the trust, any amendment must be delivered to all of the trustees. Priscilla says she was never given a copy, and she was a trustee at the time of the amendment.

Before I go any further, let me make a quick disclaimer. The trust is apparently governed by California law, and I am not a California lawyer. What's more, I don't have access to the actual documents, and the precise language could be critical. But what the heck, nobody is going to rely on my opinion on this anyway, so I'll take a shot in the dark.

First of all, I don't think that the technical argument, that the amendment is invalid because it was not delivered to the trustee, is going to hold water. Priscilla could certainly make a case that this is more than a mere technical deficiency, because had she known about the amendment she could have checked with Lisa Marie to see if she really did this and understood what she was doing. But I suspect the judge will decide that this is a harmless deficiency that doesn't change anything. Judges don't like to throw out otherwise-valid documents just because of a mistake which makes no substantive difference.

The question of whether she really signed it – and did so in her right frame of mind – is more interesting. That will really be a question of evidence, and I am sure that even as I write this, the lawyers are conducting "discovery" by interviewing witnesses, taking depositions, and subpoenaing documents. By the time it gets to trial, they will know who was in the room, why she said she was doing it, and who drafted the document she was signing. They will probably also know whether, as Priscilla claims, the signature does not match Lisa Marie's regular signature. There will almost certainly be handwriting experts who will be critical witnesses at trial.

Incidentally I don't think the fact that Priscilla's name was misspelled will be that critical. It is very common that a family member's name is misspelled in a legal document, and oftentimes the signer does not notice the error. However if there is enough other evidence to raise serious doubts about whether Lisa Marie really knew what she was doing, it could matter. Evidence is sometimes cumulative.

And then there is the fact that it was not notarized or witnessed. In California, just as in Alaska, an amendment to a trust does not have to be witnessed or notarized. That became fairly critical during the "recent unpleasantness", also known as the COVID-19 pandemic, when (at least for a while) people had trouble getting to a notary, or getting two witnesses in the same room with them. I had a few people sign amendments without witnesses or a notary in those early months. But that is an unusual situation; it is almost always better to have a notary or, failing that, a couple of witnesses.

Lisa Marie Presley was the daughter of one of the biggest stars in music history, and the daughter of a successful actress, and one of her several marriages was to one of the other biggest stars in music history, Michael Jackson. If you think disputes like this only happen to big-time celebrities, think again. I have had a number of cases where someone put together their own amendment, and turned what had been a perfectly workable trust into a mess which had to be resolved in court.

She had a good trust, but now it's all shook up.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. That way you'll get it all right, mama.

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