In the state of Nevada, a last will and testament is presumed valid – even if it was written by the deceased person themselves on the back of a napkin just days before their passing. In fact, a valid holographic will has only three requirement to be considered valid: that it be hand written, hand dated, and signed.
Unsurprisingly, this leads to potential problems with estate management. A surprise will can disrupt a family financially, and it can become an emotionally charged issue. What if the deceased didn’t have the mental capacity to make a will? What if they were coerced or influenced by somebody to the point that the will doesn’t actually represent their true desires? These types of questions can arise in any estate and when they do, that’s when a will should be contested.
Who Brings a Challenge?
Not everyone can contest a will. In Nevada, you must be a beneficiary named in the will or a relative who would inherit if the will didn’t exist. This ensures that only individuals with a legitimate interest in the estate can challenge the will’s validity.
The contestant is in the role of the plaintiff, and the personal representative of the will fills the role of the defendant.
Unlike in other areas of law, this can be the same person. While this comes across as a conflict of interest, probate law allows for this and has specific recommendations and processes to deal with it.
In cases where the executor or administrator is also the one contesting the will, they hire two sets of counsel. One probate attorney guides them as the contestant and the other as the probate petitioner. The state has a duty to protect the estate while the contestant is tasked with looking out for the beneficiaries.
Grounds for a Challenge
The contestant has to present a strong case to begin proceedings. There are specific legal grounds under which a will can be contested. These include lack of testamentary capacity, undue influence, fraud, or improper execution. As described above, the court takes the default position that whatever will exists is valid until shown otherwise. They trust that the person who made the will, the testator, was in sound mind and body when creating the will. Therefore to prove the will is invalid, your case must be rooted in one or more of these grounds.
Lack of Testamentary Capacity
This ground is based on the belief that the testator did not fully understand the extent of their assets, the natural beneficiaries of their estate, or the legal effects of signing a will at the time it was made. This occurs in situations involving elderly individuals or those suffering from dementia or other cognitive impairments.
Undue Influence
Here, the claim is that the testator was pressured or coerced into making the will, thereby reflecting someone else’s desires rather than their own. This could involve manipulation, threats, or exploitation of a vulnerable individual. Proving undue influence requires showing that the testator’s free will was overpowered by someone else’s influence.
Fraud
Contesting a will on the basis of fraud involves proving that the testator was deceived or misled when signing the document. This can happen in two ways: either the testator was tricked about the content of the will (believing it to contain different provisions), or the will itself was forged.
Improper Execution
A will must be executed in accordance with Nevada’s legal requirements to be valid. This includes being signed by the testator in the presence of at least two witnesses, who must also sign the will. If these formalities are not observed, the will may be contested for improper execution. This is a technical ground and often hinges on procedural details.
This covers a formal last will and testament. As the intro expressed, holographic wills are also considered valid in Nevada. Complicating matters further, when a new will is created, any older will is considered to be nullified in its entirety unless the new will specifically talks about different material elements (assets, beneficiaries, circumstances) or is presented as an addendum.
The Contestation Process
After the contestants standing and grounds have been established the will can be contested. This involves the following steps:
Obtain a Copy of the Will and Death Certificate: You’ll need a copy of the will and the deceased’s death certificate. The will is often filed with the probate court after the person’s death, and you can request a copy from the court. The death certificate can be obtained from the Nevada Office of Vital Records.
File a Caveat or Objection: Before the probate process begins, you file a caveat, a formal notice stating that there’s a potential issue with the will. If the probate process is already in motion, you file an objection with the probate court, challenging the will’s validity. While the intentions of contesting may be noble, in Nevada, contesting a will is just another form of litigation.
Engage in Probate Litigation: Once the objection is filed, the matter becomes a part of probate litigation. This involves court proceedings where both sides present evidence and arguments. The court will examine the evidence to determine if the will is valid. The regular rules of civil litigation apply to will contests. Each party gathers information about the claims in the discovery process. Discovery uncovers facts regarding the claim using litigation tools such as interrogatories (documents) and depositions (interviews). This culminates in an evidentiary hearing, which is a lot like a trial but is in front of a probate commissioner.
In some will contests, the probate court appoints somebody to act as the special administrator to the estate until the contest reaches resolution. The special administrator is not to distribute the estate until after the case resolves. The special administrator must be a Nevada resident, or a bank, or a trust company (or be associated with one of those as a co-administrator).
Await the Court’s Decision: The final step is the court’s decision. If the court finds the will invalid, the estate will be distributed according to the previous valid will or, if there isn’t one, under Nevada’s intestacy laws. There are times when disputes over a will become a matter of law and statute and may need to be heard by a higher court.
Challenges of Contesting a Will in Nevada
Proving undue influence, lack of capacity, and validating a holographic will all take time and effort. Fighting for the truth isn’t about greed, its about carrying out the wishes of the deceased and protecting their legacy.
The experienced probate attorneys at Clear Counsel Law Group know how to handle this process efficiently and with due diligence. Litigation is complex, and probate only makes it more complicated. A will feeling “unfair” is not good enough to get it nullified. You will need a team to build your case and present evidence to the probate court. If you need to contest a will in Nevada, call us today.