Validity of a Lost Will in Nevada Probate

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What if an otherwise valid will is lost?  Is the lost will still valid under Nevada probate law? After a person passes away, anyone in possession of the original will must file it with the Clerk of the Court within 30 days of the date of death. NRS 136.050. Original wills allow parties to examine the document and test it’s authenticity, if in dispute.

However, sometimes the original will has been lost or destroyed and only a copy exists.  What then?  Under Nevada probate law, can a copy of a destroyed or lost will be admitted to probate?

Under English Common Law

It all depends on when the original will was lost or destroyed.  Under English common law, which Nevada has adopted, a will which is lost or destroyed during the life of it’s author is presumed to be revoked.  Thus, under common law, if the will was lost or destroyed during the life of the author, a copy is invalid.  However, if the will was lost or destroyed after the death of the author, the copy of the lost will is valid and can be probated.  This distinction exists because unless it can be proved the the original will was in existence at the time of death, it should be presumed the author intentionally revoked it.

Lost Will Validity Under Nevada Probate Law

Nevada has codified this rule in NRS 136.240(3):

…no will may be proved as a lost or destroyed will unless it is proved to have been in existence at the death of the person whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime of that person, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.

In short, the person attempting to prove the copy of the will has the burden to show that the will was in existence at the time of the author’s passing or that the will was fraudulently destroyed during the life of the author.  Absent proof of either of those circumstances, in Nevada probate the original will is presumed to have been revoked and the copy cannot be probated.

Additionally, NRS 136.240(3) requires that the contents of the lost or destroyed will be established by at least two credible witnesses.

Howard Hughes Lost Will Dispute

In Howard Hughes Medical Inst. v. Gavin, 96 Nev. 905, 908 (Nev. 1980), the Nevada Supreme Court held that the witness requirement in NRS 136.240(3) requires two witnesses who actually saw the original will itself.  In Gavin, a dispute arose between the Howard Hughes Medical Institute (“HHMI”) and an heir of Howard Hughes, who infamously died without a will.  HHMI attempted to invoke NRS 136.240(3) to establish that Howard Hughes had executed a will giving his estate to HHMI.  HHMI produced one witness to claimed to have personally seen the will.  However, HHMI attempted to satisfy the requirement for a second witness by using the testimony of individuals who claimed to have heard Howard Hughes say he was leaving his estate to HHMI.  In other words, these witnesses did not actually see the original will itself, but only heard Howard Hughes talking about it.

The Nevada Supreme Court found that these witnesses, who had not actually seen a copy of the original will, were insufficient for purposes of NRS 136.240(3):

Strict compliance with the requirements of NRS 136.240 precludes proof of the contents of a lost will by hearsay declarations of deceased people, unless the declarant’s testimony is written and signed by the declarant. While declarations not in this form may be admissible for other purposes, if trustworthy and necessary, they are not sufficient to prove a lost will under the statute.

Id. at 908-909.

In short, unless at least two living people actually saw the original will itself and can offer credible testimony to the same, a lost or destroyed will cannot be probated in Nevada.

Howard The validity of a lost will was litigated in the Howard Hughes estate1938
The validity of a lost will in Nevada Probate was litigated in the Howard Hughes estate