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:
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.