Following the death of Lisa Marie Presley, Priscilla Presley is challenging the validity of her daughter’s living trust. Lisa Marie died without leaving a will and the trust provisions determine how her assets are to be distributed on her death. The King of Rock & Roll’s ex-wife disputes an amendment made to the trust in 2016, which removed her and Barry Siegel (Lisa Marie’s former business manager) as trustees.
Priscilla, with her somewhat Suspicious Mind (*badoom tss*), argues that the trust amendment executed in 2016 is not valid for the below reasons:
- Her name is spelt incorrectly;
- Lisa Marie’s signature appears different to her usual signature;
- Priscilla and Barry were not notified of the amendment, contrary to the terms of the trust deed;
- Lisa Marie’s signature is contained on a different page to the substantive provisions of the amendment; and
- The amendment had not been witnessed or notarised.
The story highlights the importance of ensuring any amendments to testamentary writings are valid.
What makes a will valid?
In Scotland, the current rules on the formalities of the execution of a will are contained in the Requirements of Writing (Scotland) Act 1995. The legislation deems that a will is formally valid if it is:
- In writing; and
- Subscribed by the testator (signed by them on the last page of the will).
Even if a will is executed correctly and is formally valid, the court may deem it void or voidable for the below reasons:
- The testator was not 12 or older (the age of testamentary capacity);
- The testator did not have sufficient mental capacity to form and express testamentary intention;
- The testator did not understand the nature and effect of what they were doing; and
- The testator was unduly influenced or coerced in any way when making the will.
What makes a will self-evidencing (probative)?
In addition to being formally valid, it is important that a will is self-evidencing (or probative) which means that it is presumed to have been validly signed by the testator. If not self-evidencing, an application must be made to the court to request they grant self-evidencing status.
The 1995 Act outlines additional requirements which deem a will to be probative:
- The will must be signed by the testator on every page (and generally with the same signature on every page);
- The testator’s signature must be witnessed by one witness.
A Little Less Conversation…
Regardless of the outcome of Priscilla’s case, readers should be mindful of the strict requirements of writing in place when considering their own testamentary writings. We would always recommend that legal advice is sought and that changes are made by formally updating the will rather than by informal writings which, if executed incorrectly, can cause complications on the death of the testator, as well as upset to their family.
Should you wish to discuss putting a will in place, please get in touch with Blackadders Private Client Team, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
