[Rev. 11/21/2013 9:45:15 AM--2013]

CHAPTER 137 - CONTESTS OF WILLS

GENERAL PROVISIONS

NRS 137.005           Enforcement of no-contest clauses; exceptions.

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.

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GENERAL PROVISIONS

      NRS 137.005  Enforcement of no-contest clauses; exceptions.

      1.  Except as otherwise provided in subsections 3 and 4, a no-contest clause in a will must be enforced by the court.

      2.  A no-contest clause must be construed to carry out the testator’s intent. Except to the extent the will is vague or ambiguous, extrinsic evidence is not admissible to establish the testator’s intent concerning the no-contest clause. The provisions of this subsection do not prohibit such evidence from being admitted for any other purpose authorized by law. Except as otherwise provided in subsections 3 and 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.

      3.  Notwithstanding any provision to the contrary in the will, a devisee’s share must not be reduced or eliminated if the devisee seeks only to:

      (a) Enforce the terms of the will or any document referenced in or affected by the will;

      (b) Enforce the devisee’s legal rights in the probate proceeding; or

      (c) Obtain a court ruling with respect to the construction or legal effect of the will.

      4.  Notwithstanding any provision to the contrary in the will, a devisee’s share must not be reduced or eliminated under a no-contest clause because the devisee institutes legal action seeking to invalidate a will if the legal action is instituted in good faith and based on probable cause that would have led a reasonable person, properly informed and advised, to conclude that the will is invalid.

      5.  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.

      (Added to NRS by 2009, 1625; A 2011, 1436)

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 the petition, and within the time allowed for filing the petition, a citation must be issued, 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)

      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)