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Under Nevada law, a transfer of property under a Will, or any such transfer, that is the product of undue influence will be deemed void.  In voiding such transfers, Nevada desires to protect alleged donors who lack the “mental vigor” to protect themselves from imposition or exploitation.

Undue influence can occur at many different levels and in many different circumstances.  In fact, in some instances Nevada law presumes undue influence exists.  For instance, a presumption of undue influence arises when a transfer is made to a person who is in a “fiduciary relationship” with the donor.  In situations such as these, when the presumption is raised, the fiduciary-beneficiary must rebut the presumption by clear and convincing evidence.

As an aside, there are three (3) primary evidentiary burdens under the law, which can be ranked in a hierarchy from easiest to satisfy to most difficult to satisfy.  Beginning with the easiest to satisfy, we have the “preponderance of the evidence” standard.  Next is the “clear and convincing evidence” standard.  And finally we have the “beyond a reasonable doubt” standard, which is the most difficult evidentiary burden to satisfy and is typically only applicable in criminal cases.

Thus, as noted above, when there is a fiduciary relationship between the donor and the beneficiary, the beneficiary must prove by clear and convincing evidence – a standard that is not as lax as the preponderance of the evidence standard but not as strict as the beyond a reasonable doubt standard – that the transfer was not the product of undue influence.

However, there are other situations in which undue influence can be shown.  In these situations (where no fiduciary relationship exists), Nevada law was not clear as to the evidentiary burden needed to prove undue influence.  This was the case until November of 2013 when the Supreme Court of Nevada issued its ruling in In re Estate of Bethuremwherein the Court held that a Will contestant must establish the existence of undue influence by a preponderance of the evidence.  To satisfy this standard, a Will contestant need only show that the transfer of property under the Will was “more likely than not” the result of undue influence.  The effect of this ruling is that it essentially makes it easier for Will contestants to establish undue influence, and it affords greater protection to those mentally weak donors who may be subject to imposition or exploitation.

In this day and age, most individuals establish a revocable trust. The revocable trust is the key document that controls the disposition of the assets that are transferred to the trust as opposed to the Last Will and Testament being the controlling instrument. The individual’s Last Will and Testament is a “pourover” Will that “pours over” any asset outside the trust that would be controlled by the terms of the Will into the trust to be disposed of per the terms of the revocable trust.

There are a number of reasons for establishing a revocable trust, including the avoidance of the time and expense of probate when one dies.  Probate is formal Court supervision of an estate proceeding in which the key document is the Last Will and Testament of the decedent.

There are a number of technical, legal requirements for a Will to be valid in Nevada.  Generally speaking, a Will must be in writing and signed the testator (person making the Will), or by an attending person at the testator’s express direction, and attested to by at least two competent witnesses who subscribe their names to the Will in the presence of the testator.  Nevada law also requires that all bequests under the terms of the Will to a subscribing witness to the Will are void unless there are two other competent subscribing witnesses to the Will. Unfortunately, this situation will arise periodically in which an individual who is a subscribing witness is also a beneficiary of the Will.  In such a case, if there are not two other competent subscribing witnesses to the Will, the bequest to the subscribing witness will be void and not legally effective.  This can have serious ramifications, especially if the bequest is a significant one to a member of the decedent such as a child.

Nevada does recognize holographic (handwritten) Wills that require no witnesses.  A valid holographic Will is a Will in which the signature, date and material provisions are written by the hand of the testator, whether or not it is witnessed or notarized.  These requirements are strictly enforced.  For example, a number of holographic Wills have been held invalid because there was no date on them.  Nevada also recognizes electronic Wills.  However, again there are technical, legal requirements that are strictly enforced. For example, an electronic Will must contain at least one authentication characteristic of the testator, and the electronic Will must be created and stored in such a manner that only one authoritative copy exists.  Nevada does not recognize nuncupative or oral Wills.

A revocable trust is much easier to create under Nevada law. Generally speaking, a trust is created if the creator properly manifests an intention to create a trust and there is trust property.

The above technical, legal requirements of a valid Last Will and Testament are yet another reason for the creation of a revocable trust in one’s estate planning.

-Attorney John Mugan

Appointing a personal representative in a probate proceeding usually takes from 3 weeks to several months.  In cases where litigation between parties occurs, it can take even longer.  The delay in appointing a personal representative can be a major problem as assets need to be collected and preserved and other estate business needs to be completed.  The appointment of a special administrator helps to resolve this problem.

In Nevada, a special administrator can be appointed quickly through an ex-parte petition and order and without a court hearing.  A special administrator has several powers outlined in NRS 140.040:

NRS 140.040  Powers, duties and immunity from liability for certain claims.

1.  A special administrator shall:

1. Collect and preserve for the executor or administrator when appointed all the goods, chattels and receivables of the decedent, and all incomes, rents, issues, profits, claims and demands of the estate.
2. Take charge and management of the real property and enter upon and preserve it from damage, waste and injury.

2. A special administrator may:

1. For all necessary purposes, commence, maintain or defend actions and other legal proceedings as a personal representative.
2. Without prior order of the court, sell any perishable property of the estate, as provided in NRS 148.170.
3. Exercise such other powers as have been conferred by the order of appointment.
4. Obtain leave of the court to borrow money or to lease or mortgage real property in the same manner as an executor or administrator.

These powers allow a special administrator to conduct necessary estate business such as gather and preserve estate assets, manage a business or participate in legal proceedings for the estate pending the appointment of a personal representative.  Often, special administrators are appointed to open and inventory safe deposit boxes to look for a Last Will and Testament or other important documents. Feel free to contact our office should you have any questions regarding the appointment of a special administrator.

Attorney – Corey J. Schmutz