NRS: CHAPTER 137 - CONTESTS OF WILLS

[Rev. 6/29/2024 3:05:22 PM--2023]

CHAPTER 137 - CONTESTS OF WILLS

GENERAL PROVISIONS

NRS 137.005 Enforcement of no-contest clauses; exceptions; application to testamentary trusts; authorized actions by personal representative regarding distributions; application to codicil.

NRS 137.007 Enforcement of declaratory judgment; validity of will not subject to challenge.

BEFORE PROBATE

NRS 137.010 Proceedings preliminary to trial.

NRS 137.020 Trial of contest: Jury; costs.

NRS 137.030 Admissibility of testimony concerning declarations of testator.

NRS 137.040 Evidence of execution.

NRS 137.050 Verdict and judgment.

NRS 137.060 Order admitting will to probate.

NRS 137.070 Perpetuation of testimony.

AFTER PROBATE

NRS 137.080 Persons qualified to contest will; filing of petition.

NRS 137.090 Issuance of citation.

NRS 137.100 Service of citation; trial; revocation of letters.

NRS 137.110 Costs.

NRS 137.120 Period of limitation.

NRS 137.130 Probate of other will.

NRS 137.140 Appeal from final order.

_________

GENERAL PROVISIONS

NRS 137.005 Enforcement of no-contest clauses; exceptions; application to testamentary trusts; authorized actions by personal representative regarding distributions; application to codicil.

1. Except as otherwise provided in subsection 4, a no-contest clause in a will must be enforced, to the greatest extent possible, by the court according to the terms expressly stated in the no-contest clause without regard to the presence or absence of probable cause for, or the good faith or bad faith of the devisee in, taking the action prohibited by the no-contest clause. A no-contest clause in a will must be enforced by the court because public policy favors enforcing the intent of the testator.

2. No extrinsic evidence is admissible to establish the testator’s intent concerning the no-contest clause to the extent such intent is clear and unambiguous. The provisions of this subsection do not prohibit extrinsic evidence from being admitted for any other purpose authorized by law.

3. Except as otherwise provided in subsection 4, a devisee’s share may be reduced or eliminated under a no-contest clause based upon conduct that is set forth by the testator in the will, including, without limitation, any testamentary trust established in the will. Such conduct may include, without limitation:

(a) Conduct other than formal court action; and

(b) Conduct which is unrelated to the will itself, including, without limitation:

(1) The commencement of civil litigation against the testator’s probate estate or family members;

(2) Interference with the administration of a trust or a business entity;

(3) Efforts to frustrate the intent of the testator’s power of attorney; and

(4) Efforts to frustrate the designation of beneficiaries related to a nonprobate transfer by the testator.

4. Notwithstanding any provision to the contrary in the will, a no-contest clause in a will must not be enforced by a court and a devisee’s share must not be reduced or eliminated under a no-contest clause in a will because:

(a) A devisee acts to:

(1) Enforce the clear and unambiguous terms of the will or any document referenced in or affected by the will;

(2) Enforce the legal rights of the devisee that provide the devisee standing in the probate proceeding;

(3) Obtain court instruction with respect to the proper administration of the estate or the construction or legal effect of the will or the provisions thereof; or

(4) Enforce the fiduciary duties of the personal representative.

(b) The court determines by clear and convincing evidence that the conduct of the devisee was:

(1) A product of coercion or undue influence; or

(2) Caused by the lack of sufficient mental capacity to knowingly engage in the conduct.

(c) A devisee or any other interested person enters into an agreement to settle a dispute or resolve any other matter relating to the will.

(d) A devisee institutes legal action seeking to invalidate a will if the legal action is instituted and maintained in good faith and based on probable cause. For the purposes of this paragraph, legal action is based on probable cause where, based upon the facts and circumstances available to the devisee who commences such legal action, a reasonable person, properly informed and advised, would conclude that the will is invalid.

5. As to any testamentary trust, the testator is the settlor. Unless the will expressly provides otherwise, a no-contest clause in a will applies to a testamentary trust created under that will and the provisions of NRS 163.00195 apply to that trust.

6. Where a devisee takes action, asserts a cause of action or asserts a request for relief and such action or assertion violates a no-contest clause in a will, this section must not prevent the enforcement of the no-contest clause unless the action, cause of action or request for relief claims one of the exceptions to enforcement set forth in subsection 4.

7. Except as otherwise provided in subsection 4, subject to the discretion of the personal representative, as applicable:

(a) A personal representative may suspend distributions to a devisee to the extent that, under a no-contest provision, the conduct of the devisee may cause the reduction or elimination of the interest of the devisee in the trust.

(b) Until a court determines whether the interest of the devisee in the will has been reduced or eliminated, a personal representative may:

(1) Resume distributions that were suspended pursuant to paragraph (a) at any time; or

(2) Continue to suspend those distributions.

(c) To the extent that a devisee has received distributions prior to engaging in conduct that potentially would have caused the reduction or elimination of the interest of the devisee in the will under a no-contest clause, a personal representative may seek reimbursement from the devisee or may offset those distributions.

8. A no-contest clause in a will applies to a codicil even if the no-contest clause was not expressly incorporated in the codicil.

9. As used in this section, “no-contest clause” means one or more provisions in a will that express a directive to reduce or eliminate the share allocated to a devisee or to reduce or eliminate the distributions to be made to a devisee if the devisee takes action to frustrate or defeat the testator’s intent as expressed in the will. The term does not include:

(a) Provisions in a will that shift or apportion attorney’s fees and costs incurred by the estate against the share allocated to a devisee who has asserted an unsuccessful claim, defense or objection;

(b) Provisions in a will that permit a personal representative to delay distributions to a devisee;

(d) A forum selection clause in the will.

(Added to NRS by 2009, 1625; A 2011, 1436; 2017, 1673; 2019, 1854)

NRS 137.007 Enforcement of declaratory judgment; validity of will not subject to challenge.

1. Except as otherwise provided in this section, if a declaratory judgment is entered under subsection 2 of NRS 30.040 during the lifetime of a decedent, declaring a document to be the valid will of the decedent, the validity of that will is not subject to challenge after the death of the decedent.

2. Nothing in this section shall be construed to:

(a) Prevent the appeal of a declaratory judgment entered pursuant to subsection 1; or

(b) Prohibit evidence that the will has been revoked or that the decedent executed a valid later will.

(Added to NRS by 2015, 3527)

BEFORE PROBATE

NRS 137.010 Proceedings preliminary to trial.

1. The Attorney General or any interested person, including a devisee under a former will, may contest the will by filing written grounds of opposition to the probate thereof at any time before the hearing of the petition for probate. Personal notice must then be given by a citation directed to the heirs of the decedent and to all interested persons, including minors and incapacitated persons, wherever residing, directing them to plead to the contest within 30 days after service of the citation in the manner provided in NRS 155.050.

2. A person so served may interpose any defense or objection to the contest by any motion authorized by the Nevada Rules of Civil Procedure in civil actions. If the motion is granted, the court may allow the contestant 10 days within which to amend the contest. If the motion is denied, the petitioner and other interested persons, within 10 days after the receipt of written notice thereof, may jointly or separately answer the contest. The times specified in this section may be extended by the court.

[Part 18:107:1941; 1931 NCL § 9882.18]—(NRS A 1999, 2268)

NRS 137.020 Trial of contest: Jury; costs.

1. In the contest, the contestant is plaintiff and the petitioner is defendant. The written grounds of opposition constitute a pleading and are subject to the same rules governing pleadings as in the case of a complaint in a civil action.

2. An issue of fact involving the competency of the decedent to make a will, the freedom of the decedent at the time of the execution of the will from duress, menace, fraud or undue influence, the due execution and attestation of the will, or any other question substantially affecting the validity of the will, must be tried by the court unless one of the parties demands a jury. The party demanding the jury shall advance the jury costs.

3. Upon the determination of the contest, costs must be awarded in accordance with the provisions of chapter 18 of NRS.

[Part 18:107:1941; 1931 NCL § 9882.18]—(NRS A 1999, 2268)

NRS 137.030 Admissibility of testimony concerning declarations of testator. In the contest, the testimony as to the declaration of a testator is admissible if contemporaneous with the execution of the will insofar as the declaration relates to the testator’s intention, state of mind, feelings, competency, and the existence or nonexistence of duress and undue influence.

[Part 18:107:1941; 1931 NCL § 9882.18]—(NRS A 1999, 2269)

NRS 137.040 Evidence of execution. If the will is contested, all the subscribing witnesses who are present in the county and who are of sound mind must be produced and examined, or the death, absence or incapacity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses resides in the county, and the evidence of none of them can be produced, the court may admit the evidence of other witnesses to prove the due execution of the will and, as evidence of the execution, it may admit proof of the handwriting of the testator and of any of the subscribing witnesses.

[19:107:1941; 1931 NCL § 9882.19]—(NRS A 1999, 2269)

NRS 137.050 Verdict and judgment. The jury must return a special verdict upon the issues submitted to them by the court; and upon the verdict, or upon the proof taken if a jury is waived, the court must render judgment, either admitting the will to probate or rejecting it.

[Part 18:107:1941; 1931 NCL § 9882.18]

NRS 137.060 Order admitting will to probate. If the court is satisfied upon the proof taken when heard by the court, or by the verdict of a jury if a jury is had, that the will was duly executed by the testator, who was at the time of sound and disposing mind and not under duress, menace, undue influence or fraudulent representation, the court, by order in writing, shall admit the will to probate.

[20:107:1941; 1931 NCL § 9882.20]—(NRS A 1999, 2269)

NRS 137.070 Perpetuation of testimony. The testimony of each subscribing witness who has testified must be reduced to writing, signed in the form of an affidavit or deposition and filed with the court, and is admissible in evidence in any subsequent contest of the will if the witness has died or has permanently moved from the State.

[21:107:1941; 1931 NCL § 9882.21]—(NRS A 1999, 2269)

AFTER PROBATE

NRS 137.080 Persons qualified to contest will; filing of petition. After a will has been admitted to probate, any interested person other than a party to a contest before probate or a person who had actual notice of the previous contest in time to have joined therein may, at any time within 3 months after the order is entered admitting the will to probate, contest the admission or the validity of the will. The contestant must file with the court in which the will was proved a petition containing the allegations of the contestant against the validity of the will or against the sufficiency of the proof, and requesting that the probate be revoked.

[22:107:1941; 1931 NCL § 9882.22]—(NRS A 1999, 2269)

NRS 137.090 Issuance of citation. Upon filing a petition pursuant to NRS 137.080, the court shall order the issuance of a citation, directed to the personal representative and to all the devisees mentioned in the will, and the heirs, so far as known to the petitioner, including minors and incapacitated persons, or the personal representative of any such person who is dead, directing them to plead to the contest within 30 days after service of the citation.

[23:107:1941; 1931 NCL § 9882.23]—(NRS A 1999, 2269; 2017, 1674)

NRS 137.100 Service of citation; trial; revocation of letters. The citation must be served and proceedings had thereunder as in the case of a contest before probate. If the jury finds or the court decides that the will is invalid or is not the last will of the testator, the court shall enter an order revoking the probate of the will and letters testamentary. Thereupon the powers of the personal representative cease, but the personal representative is not liable for any act done in good faith before the revocation.

[24:107:1941; 1931 NCL § 9882.24]—(NRS A 1999, 2270)

NRS 137.110 Costs. If the probate is not revoked, the costs of trial must be paid by the contestant. If the probate is revoked, the costs must be paid by the party who resisted the revocation or out of the property of the decedent, as the court may direct in accordance with the provisions of chapter 18 of NRS.

[25:107:1941; 1931 NCL § 9882.25]—(NRS A 1999, 2270)

NRS 137.120 Period of limitation. If no person contests the validity of a will or of the probate thereof, within the time specified in NRS 137.080, the probate of the will is conclusive.

[26:107:1941; 1931 NCL § 9882.26]

NRS 137.130 Probate of other will. Failure to contest a will does not preclude the subsequent probate of a will executed later in point of time than the one previously admitted to probate.

[27:107:1941; 1931 NCL § 9882.27]—(NRS A 1999, 2270)

NRS 137.140 Appeal from final order. An appeal from a final order determining the contest of a will is governed by the Nevada Rules of Appellate Procedure, and the notice of appeal must be filed with the clerk of the district court not later than 30 days after the date of service of written notice of entry of a final order. A party may make any motion after the determination that is provided by the Nevada Rules of Civil Procedure.

(Added to NRS by 1999, 2268; A 2001, 2343)