Undue Influence and Incapacity

Your important decisions deserve sound, competent legal advice.

Did you know a will or trust executed at a time the Decedent lacked the capacity is invalid?

Factors reflecting incapacity or undue influence include weak physical or mental health when the document was created:Undue Influence and Incapacity

Weak physical or mental health, isolation from all or part of the family, and changes to a Will and or Trust that are kept secret. As a consequence, the family may suddenly find that their share of the estate has been inexplicably decreased, or that they’ve been cut out all together.

Presumptions of Undue Influence and Incapacity:

In 2011 the Nevada Legislature enacted a law that provides that certain dispositions are presumed to be the result of undue influence.  Any transfer of assets pursuant to a will or trust after a person dies is presumed to be void (invalid) if the transferee is:

   (a)     The person who drafted the Will or Trust;

   (b)     A caregiver of the transferor;

   (c)     A person who arranged for or paid for the drafting of the transfer instrument; or

   (d)     A person who is related to, affiliated with or subordinate to any person described in paragraph (a), (b) or (c).

Even if a presumption does not apply, if a will, codicil, trust, or amendment are the result of undue influence, an interested party may challenge the document as void. NRS 155.097. A person found responsible for undue influence may be responsible for costs and reasonable attorney’s fees to initiate a proceeding to challenge a document.  However, an action to challenge a will on the basis of undue influence MUST be filed within a specific time after the will is admitted to probate or the claim is barred.

If you suspect undue influence, it is important to seek the guidance and representation of a knowledgeable Nevada Probate Law Attorney with experience in the litigation of undue influence and capacity issues, probate administration, and estate planning matters.

Ready for effective, immediate action for your probate matter? Contact Drizin Law at 702-798-4955 to speak with an attorney today.