50 State Undue Influence Project: Nevada Undue Influence Expert Definitions
In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Twenty-eighth up, Nevada.
In re: Estate of Bethurem, 313 P.3d 237, 241 (2013):
“In order to establish undue influence under Nevada law, ‘it must appear, either directly or by justifiable inference from the facts proved, that the influence…destroy[ed] the free agency of the testator’,” (quoting In re: Estate of Hegarty, 1923).
The influence that may arise from a family relationship is only unlawful if it overbears the will of the testator (In re: Estate of Hegarty, 1923).
The fact that a beneficiary merely possesses or is motivated to exercise influence is insufficient to establish undue influence (In re: Estate of Hegarty, 1923).
A will cannot be invalidated simply because it does not conform to ideas of propriety (In re: Estate of Hegarty, 1923).
A person challenging the testamentary instrument ordinarily bears the burden of proving undue influence.
“In the absence of a presumption, a will contest bears the burden of proving undue influence by a preponderance of the evidence.”
In re: Jane Tiffany Living Trust 2001, 124 Nev. 74, 78, 177 P.3d 1060, 1062 (2008):
A presumption of undue influence arises when a fiduciary relationship exists and the fiduciary benefits from the questioned transaction.
Once raised, a beneficiary may rebut such a presumption by clear and convincing evidence.
Hoopes v. Hammargren, 725 P.2d 238, 242, (1986):
“The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, since the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert undue influence over the dependent party,” (quoting Barbara A. v. John G., 1983).
NRS § 155.097 Validity; circumstances in which transfer is presumed void; rebuttable presumption; exceptions
Regardless of when a transfer instrument is made, to the extent the court finds that a transfer was the product of fraud, duress or undue influence, the transfer is void and each transferee who is found responsible for the fraud, duress or undue influence shall bear the costs of the proceedings, including, without limitation, reasonable attorney’s fees.
Except as otherwise provided in subsection 4 and NRS 155.0975, a transfer is presumed to be void if the transfer is 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 described in paragraph (a), (b) or (c).
The presumption created by this section is a presumption concerning the burden of proof and may be rebutted by proving, by clear and convincing evidence that the donative transfer was not the product of fraud, duress or undue influence.
The provisions of subsection 2 do not apply to a transfer instrument that is intended to effectuate a transfer:
(a) After the transferor’s death, unless the transfer instrument is made on or after October 1, 2011; or
(b) During the transferor’s lifetime, unless the transfer instrument is made on or after October 1, 2015.
NRS § 155.0975 Exceptions to presumption that certain transfers are void
The presumption established by NRS 155.097 does not apply:
To the spouse of the transferor.
To a transfer of property which is triggered by the transferor’s death if the transferee is an heir of the transferor and the combined value of all transfers received by that transferee is not greater than the share the transferee would be entitled to pursuant to chapter 134 of NRS if the testator had died intestate and the transferor’s estate included all nonprobate transfers which are triggered by the death of the transferor.
Except as otherwise provided in this subsection, if the court determines, upon clear and convincing evidence, that the transfer was not the product of fraud, duress or undue influence. The determination of the court pursuant to this subsection must not be based solely upon the testimony of a person described in subsection 2 of NRS 155.097.
If the transfer instrument is reviewed by an independent attorney who:
(a) Counsels the transferor about the nature and consequences of the intended transfer;
(b) Attempts to determine if the intended consequence is the result of fraud, duress or undue influence; and
(c) Signs and delivers to the transferor an original certificate of that review in substantially the following form:
CERTIFICATE OF INDEPENDENT REVIEW
I, .............................. (attorney’s name), have reviewed .............................. (name of transfer instrument) and have counseled my client, .............................. (name of client), on the nature and consequences of the transfer or transfers of property to .............................. (name of transferee) contained in the transfer instrument. I am disassociated from the interest of the transferee to the extent that I am in a position to advise my client independently, impartially and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer or transfers of property in the transfer instrument that otherwise might be invalid pursuant to NRS 155.097 are valid because the transfer or transfers are not the product of fraud, duress or undue influence.
................................................................................
(Name of Attorney) (Date)
To a transferee that is:
(a) A federal, state or local public entity; or
(b) An entity that is recognized as exempt under section 501(c)(3) or 501(c)(19) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3) or 501(c)(19), or a trust holding an interest for such an entity but only to the extent of the interest of the entity or the interest of the trustee of the trust.
To a transfer of property if the fair market value of the property does not exceed $3,000. The exclusion provided by this subsection does not apply more than once in each calendar year to transfers made during the transferor’s lifetime. For the purposes of this subsection, regardless of the number of transfer instruments involved, the value of property transferred to a transferee pursuant to a transfer that is triggered by the transferor’s death must include the value of all property transferred to that transferee or for such transferee’s benefit after the transferor’s death.
Nevada Jury Instruction 13.25: Defenses: Duress, Coercion, Undue Influence (CONTRACTS):
A contract cannot be enforced against a party whose assent to its terms was not freely and voluntarily given, but were the result of:
Duress and coercion from wrongful demands, pressure, threats, personal abuse and/or physical force inflicted upon the party to secure their assent; or
Undue influence from moral, social, or domestic forces exerted upon the party controlling the free action of their will and preventing a true voluntary consent to the contract’s terms, particularly if the party was peculiarly susceptible and yielding due to their condition and circumstances, such as a dependent relationship with the person exerting the influence, mental or physical weakness, pecuniary necessities and/or ignorance and lack of independent advice.
If there was an already-existing fiduciary or other relationship in which the party reposed trust and confidence in another party to the contract, then undue influence is presumed and the party seeking to enforce the contract must prove by clear and convincing evidence that the party against whom enforcement is sought had independent legal advice on the transaction before assenting to it or the transaction was just, fair and equitable and fully and fairly disclosed to that party.
Nevada Jury Instruction 15.5 Special or Confidential Relationship:
A special or confidential relationship exists when one party gains confidence of the other and purports to act or advise with the other’s interest in mind. It may exist although there is no fiduciary relationship; it is likely to exist when there is a family or friendly relationship, but a close or familial relationship, standing alone, is insufficient to create a confidential or fiduciary relationship. Whether a confidential or fiduciary relationship exists is a question of fact for you to determine from the evidence.
Nevada Jury Instruction 15.6 Fiduciary Relationship: Elements
Fiduciary duties are not inherent in normal arm’s length business relationships, and arise only when one party has a duty to act primarily for another’s benefit. A fiduciary relationship exists when circumstances or a relationship induce one party to relax the care and vigilance which [he] [she] would ordinarily exercise for [his] [her] own benefit.
The essential elements of a fiduciary relationship are:
The reliant party has a right to reasonably trust or have confidence in the integrity and fidelity of the other;
The reliant party does in fact reasonably trust or have confidence in the integrity and fidelity of the other;
The fiduciary is in a position to have and exercise influence over the reliant party, and
The fiduciary does in fact exercise influence over the reliant party.