Priscilla Presley’s Petition to Invalidate an Amendment to Lisa Marie Presley’s Trust
April 2023, Volume XXIV, Issue 9
From the April 2023 Issue of the Elder Law Report by Wolters Kluwer
Lisa Marie Presley is the daughter of Elvis Presley and Priscilla Presley. Upon Elvis Presley’s death in 1977, Lisa Marie Presley became a joint heir to Elvis Presley’s estate, alongside Elvis Presley’s parents. Elvis Presley’s father Vernon Presley died in 1979 and Elvis Presley’s mother Minnie Mae Hood Presley died in 1980, leaving Lisa Marie Presley as the sole heir to Elvis Presley’s estate. Lisa Marie Presley has four children: two children with Daniel Keough, Danielle Riley Keough (who goes by Riley Keough) and Benjamin Keough; and two children with Michael Lockwood, twins Finely Aaron Love Lockwood and Harper Vivienne Ann Lockwood. Benjamin Keough passed away on July 12, 2020, predeceasing his mother. On January 12, 2023, Lisa Marie Presley passed away.
On January 29, 1993, Lisa Marie Presley created a revocable living trust entitled the Promenade Trust (the “Promenade Trust”). On January 27, 2010, Lisa Marie Presley executed an Amendment and Complete Restatement of the Promenade Trust (“2010 Restatement”). In the 2010 Restatement, Lisa Marie Presley appointed her mother Priscilla Presley and her former business manager, Barry Siegel, as the co-trustees, to begin acting as co-trustees immediately, and to continue acting as co-trustees upon Lisa Marie Presley’s incapacity or death. On February 8, 2010, Priscilla Presley and Barry Siegel executed an Acceptance and Acknowledgement of Co-Trustees and began serving as the Co-Trustees of the Promenade Trust.
On January 26, 2023, seventeen days after Lisa Marie Presley’s death, Priscilla Presley filed a Petition for Order: (1) Determining the Validity of a Trust Provision; (2) Instructing the Trustee; and (3) Disapproving Modification of the Trust in the Superior Court of California, County of Los Angeles (the “Petition”) under California Probate Code section 17200, et seq. Priscilla Presley alleges that after Lisa Marie Presley’s death, she discovered a document purporting to be an amendment to the Promenade Trust, allegedly executed by Lisa Marie Presley on March 11, 2016 (“Purported 2016 Amendment”). The Purported 2016 Amendment removes Priscilla Presley and Barry Siegel as the current and successor Co-Trustees of the Trust and provides that Lisa Marie Presley is the current Trustee. Further, the Purported 2016 Amendment names Lisa Marie Presley’s daughter, Riley Keough, and her son, Benjamin Keough, as the successor co-trustees, to begin acting as co-trustees upon Lisa Marie Presley’s incapacity or death.
A contest to a trust amendment usually takes the form of a California Probate Code section 17200 petition because California Probate Code section 17200(b)(3) provides that a trustee or beneficiary can petition the Court to determine the validity of a trust provision.[1] The Petition requests that the Court find that the 2016 Purported Amendment is invalid and, therefore, the 2010 Restatement is the operative trust instrument. The Petition alleges that the 2016 Purported Amendment is invalid because it was not made in conformance with the method of amending the trust as set forth in the terms of the Promenade Trust.
California Probate Code Sections 15401 and 15402
California Probate Code section 15401 governs revocation of a revocable trust. A trust can be revoked in two ways: (1) by complying with any method to revoke that is set forth in the terms of the trust instrument; or (2) by a writing, other than a will, signed by the settlor. . . and delivered to the trustee during the lifetime of the settlor.[2] However, if a method to revoke a trust is set forth in a trust’s terms as the “exclusive” method to revoke such trust, then compliance with those terms is the only method that such trust can be revoked.[3]
California Probate Code section 15402 provides that a settlor may modify a trust – through executing an amendment to a trust – through the same procedure for revocation, “[u]nless the trust instrument provides otherwise[.]”[4] California Probate Code section 15402 appears to make section 15401 applicable to amendments, such that a trust can be amended in two ways: (1) by complying with any method to amend that is set forth in the terms of the trust instrument; or (2) by a writing, other than a will, signed by the settlor. . . and delivered to the trustee during the lifetime of the settlor. The method for executing a valid trust amendment is the subject of two recent California Court of Appeals cases, of which one is pending review by the California Supreme Court.
Haggerty v. Thorton (2021) 68 Cal.App.5th 1003
In Haggerty v. Thorton (2021) 68 Cal.App.5th 1003, the California Court of Appeal held that if a trust amendment conforms with the statutory method for amendment under Probate Code section 15401(a)(2) and does not conform with the method for amendment set forth in the trust’s terms, the amendment is valid only if the trust’s terms do not explicitly state that the method provided in the trust is the exclusive way to amend the trust.[5] If a trust specifies that a method of amending the trust is the exclusive method for amendment, and the settlor executes an amendment that does not conform with such exclusive procedure for an amendment, then the amendment is invalid.
In Haggerty, the decedent executed a trust with terms stating that the trust could be revoked or amended “by an acknowledged instrument in writing.”[6] That method of revocation or amendment was not explicitly exclusive – in other words, the trust did not state that a written and acknowledged instrument was the only way that the trust could be revoked or amended.[7] The decedent executed a first amendment to the trust that was acknowledged by a notary public, but later created two subsequent trust amendments that were handwritten and not acknowledged by a notary public.[8] Although the latter two amendments were not notarized pursuant to the trust’s terms, the two amendments complied with the statutory method provided in Probate Code section 15401(a)(2) because they were “a writing, other than a will, signed by the settlor. . . and delivered to the trustee during the lifetime of the settlor.”[9] The California Court of Appeal, Fourth District, Division One, affirmed the trial court’s holding that all of the amendments were valid – despite the two subsequent amendments not being notarized – because the amendments complied with the statutory method by signing an amendment and delivering it to herself as trustee.[10]
The Haggerty Court analyzed King v. Lynch (2012) 204 Cal.App.4th 1186, which held that under Probate Code section 15401, the method of revocation must be expressly exclusive to displace the statutory method, but that under Section 15402, a trust instrument only needs to “provide otherwise” for its method of modification to be exclusive.[11] The dissent in King, however, opined that the same rule should apply for modifications as for revocations, meaning that unless the trust instrument expressly states that the method of modification is exclusive, the statutory method is available in addition to the method stated in the trust.[12] The Haggerty Court agreed with the dissent in King and found that Probate Code section 15402 was added to adopt the same flexible rule for modifications as for revocations, and not to establish a different rule from Probate Code section 15401.[13] Thus, in the absence of an express statement of exclusivity, the statutory method of modification is available, and the later-executed amendments that were not notarized constituted valid trust amendments.
Balistreri v. Balistreri (2022) 75 Cal.App.5th 511
In Balistreri v. Balistreri (2022) 75 Cal.App.5th 511, the California Court of Appeal held that if a trust’s terms provide a method for amendment, any trust amendment must conform with such method.[14] If a method for amendment is mentioned in the trust, the statutory method of amendment under Probate Code section 15401(a)(2) is never available – regardless of whether the trust’s terms explicitly state that the method provided in the trust is the exclusive way to amend the trust.
In Balistreri, the trust’s terms provided that the trust could be amended or revoked “by written instrument signed, with signature acknowledged by a notary public, by the trustor(s) making the revocation, amendment, or termination, and delivered to the trustee.”[15] An amendment was made to the trust that was in writing, signed by the settlor, and delivered to the trustee, but the amendment was not notarized.[16] The California Court of Appeals, First District, Division Three, affirmed the trial court’s ruling that the amendment was “null and void” because it was not notarized, despite the amendment complying with the statutory method in Probate Code section 15401(a)(2).[17] The Court reasoned that because Probate Code section 15402 states that a settlor may modify a trust in the same manner as it can be revoked “[u]nless the trust instrument provides otherwise,” a trust may be modified in the same manner as it can be revoked – under Probate Code section 15401 – only if the trust instrument is completely silent on modification.[18] Relying heavily on the holding in King v. Lynch (2012) 204 Cal.App.4th 1186, the Balistreri Court determined, “When the trust instrument ‘specifies how the trust is to be modified,’ that ‘method must be used to amend the trust.’”[19] Thus, when a trust specifies an amendment procedure, a purported amendment made in contravention of that procedure is invalid, even if the amendment complies with the statutory method.[20]
On December 22, 2021, the California Supreme Court granted review of Haggerty v. Thornton in California Supreme Court Case No. S271483. The Supreme Court is likely to resolve the conflict between Haggerty v. Thornton and Balistreri v. Balistreri. The Haggerty opinion remains citable pending review pursuant to the Supreme Court’s Order.
The Promenade Trust
Here, the Promenade Trust provides the terms for amendment in Article I, Section A of the 2010 Restatement:
“By a written instrument (other than a Will) that expressly refers to this trust and is signed by me and delivered to the Trustee during my lifetime, I may revoke the trust in whole or in part, may amend any of its provisions, and may cancel any amendment. The foregoing method shall be the exclusive method by which this trust may be revoked or amended, or any amendment cancelled. Any amendment affecting the powers, duties, or compensation of the Trustee shall be effective only upon the Trustee's acceptance of said amendment. Except as otherwise specifically provided to the contrary, all provisions of this instrument shall be irrevocable and nonamendable [sic] after my death.”
The method for amendment set forth in Article 1, Section A of the Promenade Trust is substantially similar to the statutory method (“by a writing, other than a will, signed by the settlor. . . and delivered to the trustee during the lifetime of the settlor”[21]) because both methods require a written instrument signed by the settlor and delivered to the trustee. However, the Promenade Trust’s method of amendment contains an additional requirement: if an amendment affects the powers, duties, or compensation of the trustee, the amendment must be accepted by the trustee to be effective.
Under Haggerty v. Thorton, the 2016 Purported Amendment must conform with the method of amendment set forth in the Promenade Trust because the Promenade Trust’s terms explicitly state that the method provided in the Trust “shall be the exclusive method” to amend the trust.[22] Under Balistreri v. Balistreri, the 2016 Purported Amendment must also conform with the method of amendment provided in the Promenade Trust since a method of amending the trust is mentioned in the Promenade Trust’s terms.[23] Therefore, regardless of the upcoming California Supreme Court decision in Haggerty v. Thornton, the 2016 Purported Amendment must conform with the method of amendment defined in the Promenade Trust’s terms. The 2016 Purported Amendment must be a written instrument (other than a Will) that expressly refers to the Trust and is signed by Lisa Marie Presley, and must have been delivered to the Co-Trustees during Lisa Marie Presley’s lifetime in order to be a valid amendment to the Promenade Trust. The 2016 Purported Amendment is an amendment “affecting the powers, duties, or compensation of the Trustee” because it purports to remove Priscilla Presley and Barry Siegel as the Co-Trustees, and name Lisa Marie Presley as the current Trustee. Therefore, the 2016 Purported Amendment also needed to be accepted by the presently acting Co-Trustees, Priscilla Presley and Barry Siegel, to be valid.
The Petition alleges that the 2016 Purported Amendment was never delivered to Priscilla Presley and Barry Siegel at the time it was purportedly executed, nor at any time during Lisa Marie Presley’s lifetime, as required by the Promenade Trust’s terms. If the 2016 Purported Amendment was never delivered to the Co-Trustees, the Co-Trustees could not have accepted the amendment, as required by Article 1, Section A of the Promenade Trust. If the 2016 Purported Amendment was never delivered to or accepted by Co-Trustees Priscilla Presley and Barry Siegel, it is invalid because it does not conform with the method for amending the Promenade Trust provided in Article 1, Section A. If a Court holds that the 2016 Purported Amendment is invalid, the 2010 Restatement becomes the operative trust instrument.
In addition to alleging that the 2016 Purported Amendment was not delivered to the Co-Trustees as required by the Promenade Trust’s terms, the Petition also details other “issues surrounding the authenticity and validity” of the Purported 2016 Amendment. The Petition provides that the 2016 Purported Amendment misspells Priscilla Presley’s name, that the date of March 14, 2016, was added to the document via .pdf, and that the purported signature of Lisa Marie Presley “appears inconsistent with her usual and customary signature.” Further, the Petition notes that the 2016 Purported Amendment “was neither witnessed nor notarized.”
As discussed above, the method for creating a valid amendment to the Promenade Trust, set forth in Article 1, Section A of the Promenade Trust, does not include a requirement that an amendment be witnessed or notarized. The fact that the 2016 Purported Amendment was not witnessed or notarized has no bearing on whether it conforms with the method of amending the Trust as set forth in the Promenade Trust’s terms. The fact that an amendment is not witnessed or notarized could be used to support another theory, such as forgery or fraud, but the Petition is brought on the sole grounds that the 2016 Purported Amendment is invalid because it was not made in conformance with the method of amending provided in the Promenade Trust.
Guardian ad Litem Appointment for Lisa Marie Presley’s Minor Daughters
On March 10, 2023, Michael Lockwood filed petitions to be appointed as the Guardian ad Litem for his twin daughters Finely Aaron Love Lockwood and Harper Vivienne Ann Lockwood, who are 14 years old. As minor beneficiaries of the Promenade Trust, they cannot represent themselves in the litigation and will appear through a Guardian ad Litem appointed by the Court. For a further discussion on the role of a Guardian ad Litem in trust litigation, see “A Minor’s Compromise: How a Minor Trust Beneficiary’s Rights Can Be Forever Impacted When a Guardian ad Litem Settles Litigation on the Minor’s Behalf” in the February 2023 issue of The Elder Law Report.
[1] California Probate Code § 17200(b)(3)
[2] California Probate Code § 15401
[3] California Probate Code § 15401(a)(2)
[4] California Probate Code § 15402
[5] Haggerty v. Thorton (2021) 68 Cal.App.5th 1003
[6] Haggerty v. Thorton, supra at 1006
[7] Id., at 1012.
[8] Id., at 1006-07.
[9] Id., at 1007; California Probate Code § 15401(a)(2)
[10] Id., at 1010.
[11] King v. Lynch (2012) 204 Cal.App.4th 1186
[12] Id., at 1194-1196
[13] Haggerty v. Thorton, supra at 1010
[14] Balistreri v. Balistreri (2022) 75 Cal.App.5th 511
[15] Balistreri v. Balistreri, supra at 515
[16] Id., at 524.
[17] Id., at 511, 514.
[18] Id., at 516.
[19] Id., at 516-17, quoting King v. Lynch (2012) 204 Cal.App.4th 1186, 1192-1193.
[20] Id., at 517.
[21] California Probate Code § 15401(a)(2)
[22] Haggerty v. Thorton, supra at 1003
[23] Balistreri v. Balistreri, supra at 511