Priscilla, who also acted as trustee to the estate of her late husband Elvis Presley and managed her daughter’s share of the estate until Lisa Marie’s 25th birthday, has brought challenges that pick up on several legal and factual peculiarities with the 2016 Amendment such as a signature that “appears inconsistent with [her daughter’s] usual and customary signature” and a lack of witnesses to the execution of the Will.
While a deeply upsetting and challenging period for the late Ms Presley’s loved ones, this legal challenge raises timely lessons for all those considering estate planning and preparing for what happens after we are gone. While the Presley challenge will play out under US law, this article will consider these lessons from an English Law perspective.
Unusual Signatures: Risks of Impersonation/Incapacity
In England & Wales, for a Will to be valid, it must be signed by a competent testator (the person whose Will it is).
While there has been no immediate suggestion of foul play in the context of Ms Presley’s legal challenge, in England & Wales, the appearance of “unusual signatures” on testamentary documents such as Wills can be a worrying indication of an imposter attempting to defraud the estate of the deceased. While this may seem far-fetched, the Society of Trust and Estate Practitioners (STEP) estimates that, in the UK alone, approximately £150 million is claimed under fraudulent Wills each year.
Alternatively, an “unusual” signature by a testator that does not resemble their previous signatures could be an indication of incapacity or mental decline, the suggestion of which can be enough to challenge the validity of a Will in and of itself. This is because it is not enough that a testator signs the Will. For the Will to be valid they must have wanted to make the Will and have understood the consequences of doing so. If it is suggested that the testator did not fully understand what they were doing in creating or varying a Will, there is a serious risk of a Will’s validity being challenged in England & Wales for want of knowledge and approval.
The question of testamentary capacity most often arises in relation to elderly testators, but concerns around capacity can arise at all ages. Where there are concerns about a testator’s capacity, it is accepted good practice to obtain a capacity assessment from an appropriate legal or medical professional around the time of the signing of the Will.
At present, it is still the case that Wills must be physically signed by putting pen to paper. But as the drive towards electronic signatures gathers momentum, it may be that the day will come when Wills can be validly signed with some form of electronic process. If so, safeguards will need to be incorporated in the process to manage the increased risks associated with impersonation and incapacity. Under present law, it is vital that appropriate measures are taken to ensure validity at the time of the Will’s creation.
The Importance of Witnesses
One such check is the requirement that all valid Wills must be signed by the testator in the presence of two witnesses (who then each themselves sign the Will in the presence of the testator to attest to its legitimacy). Although a different legal system is applicable in Ms Presley’s case, it is interesting that one of the allegations is that the 2016 Amendment was not properly witnessed in accordance with US law.
Under English law, a Will is automatically invalid unless properly executed and witnessed. While this is unlikely to present any difficulty in the context of a new Will that has been professionally prepared for signing by a legal professional, it is worth remembering that these requirements apply to amendments just as readily as they do to the Will itself. For example, if a testator has already had a valid Will prepared and executed but wishes to make a change to the terms of the Will, any such change must also be witnessed for that change to be valid and enforceable. When considering amending or varying a Will, it is always advisable to seek professional legal advice, as the rules relating to validity are both precise and unforgiving.
Rights to challenge a valid Will
As noted above, there are various circumstances in which a person can challenge the validity of a Will, for example where it is claimed that the Will lacked the knowledge or approval of the testator. However, under English law there are also circumstances under which even a valid Will can be challenged if the Will does not include provisions to provide for someone who falls within a particular class of individuals (such as spouses, children, or those financially maintained by the deceased at the time of their death).
If a Will does not make provisions to provide for someone in one of these categories, they can apply to the Courts to have the Will varied to ensure that appropriate financial provisions are made.
In general, it is best practice that a record be made of the testator’s decisions and reasons for them when making or varying a Will. As a note from the testator confirming that they specifically chose not to include a person in their Will can help to defend against any such challenge.
From the above, it may seem that the rules around Wills are fraught with pitfalls to fall into. But if you or those you care about are thinking about estate and succession planning or want to review the documents that you have in place already, our Private Client law team is here to assist.
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