Estate Planning Includes Litigation Planning

Read an installment of “View from the Bench” published in the bar journal Communiqué (November 2021) written by Nevada Court of Appeals Chief Judge Michael Gibbons.

Nevada lawyers practicing estate planning and probate law often face challenges in helping clients choose from available estate plans. For example, which of the many types of trusts is appropriate to preserve wealth and minimize taxes? Or is an exotic product like a family office, foundation, or offshore entity the best strategy? Further, what can be done to prevent families from fighting over assets and engage in conflict resolution when disagreements escalate? Preparing and protecting a simple will might seem to be the least of a lawyer’s concerns. Yet on the last day of 2020, the Supreme Court of Nevada issued an opinion that diverged from prior requirements that courts strictly construe the “lost wills” statute. In Nevada, a lost will may not be probated “unless its provisions are clearly and distinctly proved by two or more credible witnesses,” and the will was either in legal existence at the testator’s death (not revoked or destroyed) or fraudulently destroyed during the testator’s lifetime. NRS 136.240(3).

In In re Scheide, 136 Nev., Adv. Op. 84, 478 P.3d 851 (2020), the testator, Theodore, disinherited his estranged son and only natural heir, leaving his entire multimillion-dollar estate to St. Jude Children’s Research Hospital. Theodore’s attorney retained the original will. A few months later, Theodore executed a nearly identical second will that only changed the executor. Theodore’s attorney and her assistant witnessed the will’s execution. Theodore, however, insisted upon retaining the second will. Later, Theodore was appointed a guardian, moved into an assisted living home, and passed away. The second will was never discovered; however, Theodore’s guardian produced an authentic copy.

St. Jude tried probating that copy as a lost will. Theodore’s attorney testified to the will’s contents, accuracy, and authenticity while the attorney’s assistant testified to its execution. The district court denied admission to probate, reasoning that because the original will was lost, it was presumptively destroyed. Therefore, St. Jude did not meet the two-witness requirement because the assistant could not testify from personal knowledge to the will’s contents.

On appeal, the court of appeals affirmed but the Supreme Court of Nevada reversed, holding that the copy of the second will could be admitted to probate. First, the supreme court clarified that the statute only required the second will be in legal existence, not physical existence, at the testator’s death. A lost-will proponent may prove the legal existence of the will by showing the testator’s wishes were unchanged following the will’s execution. In this case, Theodore expressed that he did not want to reconcile with his son and that he wanted his estate to pass to St. Jude.

Second, the supreme court relaxed the strict statutory requirement that two witnesses testify to the will’s contents from personal knowledge. After reviewing extra-jurisdictional precedent and statutes, the court held that if there is an authentic copy of the will in evidence, then the lost will may be admitted to probate when one witness testifies to its provisions; the second witness need only testify that the copy fairly and accurately depicts the testator’s signature and that the witness was present at will execution. The supreme court reasoned that the two-witness requirement, when there is an accurate copy and the testator’s intent is unchanged, created an absurd result in placing an unnecessary and onerous burden on the lost-will proponent by requiring that the second witness testify to the will’s provisions.

Because of the supreme court’s new distinction, it is ever important for attorneys to document the circumstances of the will’s execution, and with the client’s permission, to retain the original or a duplicate original, and always retain a copy of the will. If the original will is ever lost, and the proponent can prove the legal existence of the will, a copy of the will may still be admitted to probate, despite not having two witnesses who can testify to the will’s provisions, but who can testify to the testator’s intent and the will’s authenticity.

About the author
Chief Judge Michael Gibbons

Chief Judge Michael Gibbons has served on the Nevada Court of Appeals since its inception in 2015. He previously served as a general jurisdiction district court judge for 20 years and regularly adjudicated probate cases.

About this article: This article was originally published in the “Estate Planning” issue of Communiqué, the official publication of the Clark County Bar Association, (November 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-november-2021/.

© 2021 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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