Multiple Wills: Which Is Valid?

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Person Dies With Multiple Wills

Many people create multiple wills during their lives. Their personal life may change. They may become remarried, divorced or widowed. A person might become estranged from someone they originally named as a beneficiary. Thus, when the person passes away, their friends and family might discover multiple wills. The discovered wills may have conflicting terms as to the disposition of property.  This common situation often befuddles family and friends. Which will governs?

The Most Recent Valid Will Governs

Generally, the most recent will is the valid will. Family or friends will normally file this will with the Clerk of the Court. Assuming the will is valid, the court will probate this will. Under Nevada law, when a person creates a new will, this automatically revokes any prior will.  NRS 133.120(1)(b). Thus, it must be fairly easy to identify the will that governs, correct?  Family and friends simply need to identify the will with the most recent date, correct?

Well, not necessarily. Remember, the most recent valid will governs. The analysis focuses on whether the most recent will is also valid. A will may be invalid for any number of reasons. First, the testator (author) must have properly executed the will. Second, the testator of the will may have lacked testamentary capacity. Third, generally, the will must be an original and not a copy.

Determining Which Will Is Most Recent And Valid

A testator successfully executes a valid will if they and two witnesses sign it. NRS 133.040. If the testator hand-writes the material terms of the will, then witnesses are not necessary. This is called a holographic will. NRS 133.090. Even if the testator signed a printed document, but there were no witnesses, the will is not valid.

A testator must have testamentary capacity in order to sign a valid will.

“[t]he test of a testamentary capacity is not whether a person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body”

Matter of Estate of Kern, 716 P.2d 528, 534 (Kan. 1986) quoted in  IN RE MARSHALL, Nev: Supreme Court 2004.

Finally, a person seeking to probate a will must provide the original, with one exception. A person may probate a copy of a will if they can show by clear and convincing evidence that the original existed at the time of death of the testator. The law assumes that if an original will cannot be proven to exist at the time of death, that it was purposefully destroyed prior to death. After Howard Hughes died, the Howard Hughes Medical Institute (HHMI) attempted to prove a will existed naming them as the sole beneficiary of the estate. HHMI was unable to prove the will existed at the time of death, and was thus unsuccessful.