2023 has started off with many well-known celebrities passing away (David Crosby, Cindy Williams, Jeff Beck, and the beloved Mayor Hurricane Hazel McCallion). The most shocking death, in my opinion, has been Lisa Marie Presley (“Lisa Marie”), who died just days after attending the Golden Globe Awards.

Shortly after the public memorial service was held for Lisa Marie at Graceland, news broke that the mother of the late Lisa Marie would be contesting the validity of an amendment to a revocable living trust executed years prior. The amendment, said to have been executed on March 11, 2016 (the “2016 Amendment”), saw the late Lisa Marie remove her mother, Priscilla Presley (“Priscilla”) and manager Barry Siegel (“Mr. Siegel”) as co-trustees of The Promenade Trust (the “Trust”) and in their place, Lisa Marie’s daughter, Riley Keough and her son, Benjamin Keough were appointed. As Benjamin sadly predeceased his mother, Riley was left as the sole surviving trustee. The Trust holds a 15% interest in Elvis Presley’s Graceland estate and the licensing of his intellectual property.

Interestingly enough, Lisa Marie sued Mr. Siegel in 2018, who was a trustee of the trust left for her by her late father, Elvis, citing his reckless and negligent mismanagement and self serving-ambition, resulting in the trust being whittled down from $100M to just $14,000. Perhaps this may be the motivation behind the 2016 Amendment.

Priscilla has filed a petition with the court in Los Angeles setting out that the 2016 Amendment was invalid. Priscilla has contested that she was not notified that she was removed as a trustee of the Trust until after Lisa Marie’s death, which notification was required as per the terms of the Trust. Priscilla sets out in her filing that she and Mr. Siegel had been appointed as co-trustees on January 29, 1993 when Lisa Marie executed a revocable living trust. The Trust was amended and restated in its entirety on January 27, 2010. As estate planners know, a living trust is a form of estate planning that allows a person to control their assets while they are alive and will provide for dispositive provisions after their death. Lisa Marie apparently did not have a separate will.

Priscilla’s petition further sets out that there was a spelling error in the context of Priscilla’s name, that the signature was not consistent with Lisa Marie’s usual and customary signature, the amendment was not notarized, is only a PDF copy (not the original) and Lisa Marie’s signature appears on a separate page with no reference to the change in trustees.

Considering the unfortunate situation of Lisa Marie’s estate lets us contrast this situation with properly executed testamentary documents in Ontario.

Execution of Testamentary Documents in Ontario

In Ontario, the execution of testamentary documents is governed by the Succession Law Reform Act [1] (the “SLRA”). In Ontario, pursuant to Part I s. 4(2) and subject to subsection (3) and sections 5 and 6 of the SLRA, “a will is not valid unless:

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator. 2021, c. 4, Sched. 9, s.1 (1)”

Effective January 1, 2021, the SLRA was amended to permit the use of audio-visual communication technology [2], together with permitting execution by the witnesses to be done by way of counterpart. Ontario Regulation 129/20 provides at least one of the witnesses to the execution by way of audio-visual communication technology must be a “licensee” under the Law Society Act (i.e. a lawyer or paralegal).

Priscilla has alleged that Lisa Marie’s purported signature on the Trust was on a separate page where there is no reference to the change in trustees. Contrast this Trust with an Ontario Will: pursuant to section 7 of the SLRA, the signature is “valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”

A Will or part of a Will is revoked only by (i) another will made in accordance with the provision of Part I of the SLRA, (ii) a writing that declares an intention to revoke and made in accordance with the provision of Part I; or (iii) by burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it [3]. An amendment to a Will (more commonly referred to as a Codicil), would be valid if it does not revoke the Will in its entirety and replaces the revoked section (being the appointment of trustees) with a new section.

While not ideal, having spelling errors in a trust deed or testamentary document does not invalidate it. In Ontario, there is no requirement to have a trust deed or testamentary document notarized for it to be considered valid. In most cases, trust deeds have a provision that would require the trustee being removed to be notified for the removal to be valid. However, this is not necessarily the case in the context of testamentary documents.

Priscilla’s last allegation that Lisa Marie’s signature is not consistent with her usual signature. In Riddle v Nielsen [4], Larry Riddle’s son sought a declaration that the purported will of the late Larry Riddle was invalid on the basis that the document could not have been executed by Larry. Madam Justice Bell found that to meet the requirements of s.4(2) of the Succession Law Reform Act, the onus is on the propounder of the Will to establish that the testator signed the Will in the presence of the two witnesses. Again, imagining that the Trust was an Ontario Will for purposes of our comparison, in Ontario, unless it was holographic, Lisa Marie’s 2016 Amendment ought to have been signed by her in the presence of two witnesses. One of those witnesses would then be required to swear an affidavit confirming that the amendment to the Will was signed in his or her presence. This would surely satisfy the requirements of s.4(2) of the SLRA.

It may be years before the outcome of Priscilla’s petition is resolved. If the court finds the 2016 Amendment invalid, the changes made thereunder would be considered voided and Priscilla and Mr. Siegel would be reinstated as co-trustees of the Trust. For now, the matter has everyone all shook up.

Footnotes

[1] Succession Law Reform Act, R. S. O. 1990, c. S.26

[2] Audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time. 2021, c. 4, Sched. 9, s. 1 (2).  For example, Zoom, Teams, Skype, FaceTime

[3] s. 15 of the SLRA

[4] 2022 ONSC 5895