It is not uncommon for someone to make changes to their estate plan. However, changes which involve reducing a distribution to a beneficiary or including a new beneficiary who is not a family member can easily be suspect. A party must have testamentary capacity when executing any change to their estate plan. Even if they possess the requisite capacity, a challenge can still be made on the basis that the transfer was the result of fraud, duress or undue influence. Certain transfers are presumed to be void for these reasons.
In 2011 the Nevada Legislature enacted NRS 155.097. This statute provides that a transfer is presumed void to a transferee who is (a) the person who drafted the transfer instrument; (b) a caregiver of the transferor who is a dependent adult; (c) a person who materially participated in formulating the dispositive provisions of the transfer instrument or paid for the drafting of the transfer instrument; or (d) a person who is related to, affiliated with or subordinate to any person just described. If the presumption applied, the transferee would then have to prove by clear and convincing evidence that the transfer was not the result of fraud, duress or undue influence.
The presumption, which is difficult to overcome, does not apply to transfers to a spouse, a caregiver who does not receive any compensation or a charitable organization. Even if one of these exceptions don’t apply, you can take a proactive measure by having the document reviewed by an independent attorney who issues a Certificate of Independent Review. NRS 155.0975(4).
The Certificate is relatively inexpensive and is well worth the cost in consideration of the possibility of a challenge. While the Certificate doesn’t eliminate the possibility of a challenge, it creates a more difficult time for the other party since the presumption is eliminated and will hopefully cause them to reconsider before initiating expensive litigation.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.