In order for a decedent’s estate to be settled and its assets distributed, the personal representative must petition the court and request that the decedent’s will be admitted to probate. The first step in settling a decedent’s estate is to petition the court to open a probate case and filing the will. “Probating” a will is the process of proving that it is an authentic representation of the wishes of the testator. If someone believes that the will is not valid and they have standing, they have the right to file an objection and will be given the opportunity to produce evidence in support of their objection.
Procedure for Challenging a Will
In order to object to a will in Nevada, the contestant must be an “interested party.” An interested party is someone who has an economic interest in the matter and is generally limited to beneficiaries, heirs, and beneficiaries of a prior or later will. NRS §137.010 A will contest can be initiated before or after the will has been admitted to probate.
Before probate. Any interested person may challenge the will by filing written grounds of opposition to the probate at any time before the hearing of the petition for probate. Personal notice must then be given to the heirs of the decedent and to all interested persons. NRS §137.010
After probate. There are additional restrictions on who can initiate a will challenge after probate. While the person still must be an interested party, any person who already challenged the will before probate or any person who had actual notice of a prior contest in time to have joined therein are prohibited from filing a contest after the will has been admitted to probate.
Within 3 months after the court issues an order admitting the will to probate, an interested party can initiate a proceeding to challenge the will in the same court where the will was proved. The objection must be in writing and must include the allegations against the validity of the will and request that probate be revoked.
Grounds for Contesting a Will
- Competency of the decedent to make a will. Nevada law requires that for a will to be valid, the testator must have been mentally sound at the time they executed their will. They also must have been over the age of 18. Evidence to the contrary would be grounds to contest the will. NRS § 133.020
- Undue influence. Undue influence occurs when one person (the influencer) controls a vulnerable testator. As a result, the testator did not make the will out of their own free will. To prove undue influence, “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 (1923).
- Lack of due execution. Under Nevada law, to be lawful a will must be signed by the person making the will and properly witnessed by at least two competent people.
- Duress. Duress involves using threats or psychological pressure to force someone to make a will that is contrary to their wishes. Such a will is invalid.
Outcomes of a Will Contest
If a decedent does not have a will, their estate will be distributed following Nevada’s rules of intestate succession. If a will contest is successful, the estate would be intestate unless another will is produced that is determined to be valid. If the will contest is not successful, the proceeding will move forward with the will that was submitted.
No Contest Clause
A “no contest” clause in a will is designed to discourage people from delaying probate and attempting to frustrate the desires of the testator by challenging a will. In Nevada, while no contest clauses are enforced against beneficiaries who bring frivolous contests, they are not effective against beneficiaries who initiate will contests in good faith and with probable cause. NRS § 137.005