Henderson Office: 702.433.4455
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Proving Undue Influence In A Will Contest

Law Firm of Jeffrey Burr

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.

-Attorney Michael D. Lum

Henderson Office
2600 Paseo Verde Parkway, Suite 200
Henderson, NV 89074
Phone: 702.433.4455
Fax: 702.451.1853
Las Vegas Office
10000 W. Charleston Blvd., Suite 100
Las Vegas, NV 89135
Phone: 702.254.4455
Fax: 702.254.3330
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