Introduction
One of the many reasons given by Nevada estate planning attorneys for drawing up a will is to prevent disputes over the assets owned by the maker of the will (the “testator”) after the testator dies. Unhappily, even the best drawn will and most thoroughly considered estate plan cannot prevent unhappy heirs from concluding that they were treated unfairly in the will. Because the testator is beyond reach, persons who are unhappy with the terms of the will have only one recourse: a lawsuit to challenge the validity of the will. A review of the basics of a will contest may help anyone who is in doubt about whether to commence a will contest.
The basics
Only a limited number of people in Nevada can contest a will. No one can commence a will contest unless they are an “interested party,” that is, an heir, a family member who may have a claim to family property or anyone with a financial interest in the estate. A will contest may be filed both before the will is filed with the probate court and after a formal probate proceeding has been commenced. Notice of the lawsuit must be provided to all heirs and beneficiaries named in the will.
Grounds for contesting a will
A will is not valid if the testator did not possess sufficient mental capacity at the time the will was signed. “Sufficient mental capacity” is the ability to understand the purpose and consequences of the will. If the testator can be proved to lack sufficient mental capacity, the entire will can be ruled invalid.
Nevada state law imposes certain formal requirements on wills, and the failure to adhere to these formalities can render the will invalid. As noted, the will must be in writing and signed by the testator. The signing of the will must be witnessed and attested by two competent persons above the age of 21.
Undue influence and duress
Signing a will must be the free act of the testator. If a person named in the will had an unusually close relationship with the testator, that relationship could have destroyed the necessary free will because the testator may have been improperly influenced by such a person and, therefore, did not have the complete freedom to act that is necessary to create a valid will. Fraud provides a similar reason for invalidating a will. A person hoping to receive a large share of the testator’s estate may make a false representation to the testator before the will is signed, hoping to persuade the testator to favor the person who makes the fraudulent statement with an exceptionally large share of the estate.
Outcome of a will contest
Will contests generally have one of three potential outcomes:
- The will is sustained and the person (or persons) who commenced the will contest loses.
- One or more discrete provisions of the will are found to be invalid, and the assets subject to those provisions are distributed according to Nevada’s laws of intestate succession.
- The entire will is declared to be invalid, and the testator’s entire estate is distributed according to Nevada’s laws of intestate succession.
Conclusion
Anyone considering commencing a will contest should consult an experienced estate and probate attorney for an opinion on the likelihood of prevailing.