Contesting a Will in Nevada Probate

Contesting a will in Nevada probate may be done by alleging undue influence, lack of capacity or improper execution.

Contesting a will in Nevada probate may be done by alleging undue influence, lack of capacity or improper execution.

Nevada probate law allows “interested persons” to object to the admission of a will to probate.  A will is admitted to probate after a party petitions the probate court to accept the will.  The validity of a will may be challenged before the will is admitted (accepted) by the probate court or for a very limited time after the will has been admitted.

Contesting a Will: Standing

Do you have the legal right to contest the will? This is known as standing.  “The Attorney General or any interested person, including a devisee under a former will, may contest the will by filing written grounds of opposition to the probate thereof at any time before the hearing of the petition for probate.” NRS 137.010(1).  As I’ve discussed previously, a lot of people qualify as an “interested person.”   “Interested person” is defined in NRS 132.185:

“Interested person” includes, without limitation, an heir, devisee, child, spouse, creditor, settlor, beneficiary and any other person having a property right in or claim against a trust estate or the estate of a decedent, including, without limitation, the Director of the Department of Health and Human Services in any case in which money is owed to the Department of Health and Human Services as a result of the payment of benefits for Medicaid. The term includes a person having priority for appointment as a personal representative and other fiduciaries representing interested persons. The meaning as it relates to particular persons must be determined according to the particular purposes of, and matter involved in, a proceeding.

Expansive!

Contesting a will before probate is a right which belongs to anyone with any kind of claim to the estate or familial relationship to the Decedent.  This means that persons explicitly disinherited in a will, or persons not mentioned in the will, may have a right to contest it before probate.

Contesting a Will: Improperly Executed Will

A will may be contested prior to probate if it was not executed properly. If a will has not been properly executed, it cannot be used to probate the assets of the Decedent. Under the Nevada probate code, a valid will is “in writing and signed by the testator, or by an attending person at the testator’s express direction, and attested by at least two competent witnesses who subscribe their names to the will in the presence of the testator.” NRS 133.040.  A party contesting a will may do so by alleging that the will was improperly executed.  NRS 137.020(2).

An “attending person at the testator’s express direction” anticipates situations where the testator (author of the will) is of sound mind, but physically unable to sign their name to the document.  This allows a person under the direction of the testator to execute the document on their behalf.

The witnesses must see the testator sign the will and they, themselves must sign as witnesses in the presence of the testator.    Bequests made to a witness are voided without two additional, disinterested witnesses.  “All devises in a will to a subscribing witness are void unless there are two other competent subscribing witnesses to the will.” NRS 133.060.  These requirements are a guard against fraud.   They ensure that at least two financially disinterested parties provide evidence of the authenticity of a document.

There is an exception to the witness requirement: a holographic will.  “A holographic will is a will in which the signature, date and material provisions are written by the hand of the testator, whether or not it is witnessed or notarized.”  NRS 133.090. Holographic wills are uncommon.

An improperly executed will cannot be probated in Nevada.  A party contesting a will before probate for improper execution will need to show that one of the requirements discussed above was not met.

Contesting a Will: Undue Influence

A party contesting a will may allege undue influence. NRS 137.020(2).  In simple terms, undue influence occurs when one person controls another person.  The Nevada Supreme Court has defined undue influence this way:

In order to establish undue influence under Nevada law, “it must appear, either directly or by justifiable inference from the facts proved, that the influence . . . destroy[ed] the free agency of the testator.” In re Estate of Hegarty, 46 Nev. 321, 326, 212 P. 1040, 1042 (1923). The influence that may arise from a family relationship is only unlawful if it overbears the will of the testator. Id. at 328, 212 P. at 1042. Moreover, the fact a beneficiary merely possesses or is motivated to exercise influence is insufficient to establish undue influence. Id. at 326, 212 P. at 1042. Finally, a will cannot be invalidated simply “because it does not conform to ideas of propriety.” Id. at 327, 212 P. at 1042.

Caraveo v. Perez (In re Estate of Bethurem), 313 P.3d 237 (Nev. 2013).  A party objecting to a will based upon undue influence will need to show that the “free agency” of the author of the will was “destroyed.”

Contesting a Will: Lack of Capacity

A party contesting a will may do so based upon a lack of sufficient mental capacity of the testator (author).

A testator is of sound and disposing mind and memory if, at the time of making his will, he has sufficient mental capacity to be able to understand the nature of the act he is doing, and to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.

Estate of Lingenfelter, 38 Cal. 2d 571, 582 (Cal. 1952)(cited favorably by the Nevada Supreme Court in  In re Estate of Mallas v. Mallas, 2012 Nev. Unpub. LEXIS 1481 (Nev. 2012))

Summarizing the above, a will contest based upon a lack of capacity will need to show the testator (author):

  1. did not comprehend the nature of the act of signing a will;
  2. did not recollect or understands the nature of his property; and
  3. did not recognize and/or understand his relations to the persons who would inherit or be affected by execution of the will.

For purposes of an undue influence will contest, the contesting party only needs to show one of three above.   Often, these types of disputes involve reviewing the medical history of the Decedent.  Medical records will be subpoenaed and the Decedent’s physicians may be called to testify about their knowledge of the Decedent’s capacity at the time the will was executed.  Normally, these kinds of medical records and testimony from physicians are privileged.  However, a will contest falls within an exception to the privilege and is allowed.  NRS 49.245(3).

What about No Contest Clauses?

As a probate litigator, I am often asked about no contest clauses.   Virtually every will contains a no contest clause.  A typical no contest clause might look something like this:

If any beneficiary under this will contests this will or any of its provisions, any share or interest in my estate given to the contesting beneficiary under this will is revoked and shall be disposed of as if that contesting beneficiary had not survived me.

Sounds absolute, doesn’t it?

Think about it, though.  If a no-contest clause were absolute, what would be the counterbalance to fraud, undue influence or lack of capacity?  How would good faith disputes over the interpretation and application of terms of a will be resolved?

The answer is found in NRS 137.005(4):

Notwithstanding any provision to the contrary in the will, a devisee’s share must not be reduced or eliminated under a no-contest clause because the devisee institutes legal action seeking to invalidate a will if the legal action is instituted in good faith and based on probable cause that would have led a reasonable person, properly informed and advised, to conclude that the will is invalid.

In other words, so long as a will contest is brought in good faith, the no contest provision cannot be invoked against a party that contests a will.   This protects the wishes of the Decedent/testator (author) against unwarranted and baseless litigation, but also protects against fraud and other improper or negligent conduct in the administration of the probate estate.

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