Legal Question in Wills and Trusts in Nevada

Re: Contesting a will

No contest clauses are common. But what is proposed, may not be a contest of the will. See an estate litigation attorney.

Re: Contesting a will

When creating a will, a benefactor will frequently insert no contest clauses to prevent beneficiaries from challenging the amount or validity of their bequest.

In your case, it seems your aunt's attorney removed you as guardian of your cousin and has been using that position to siphon money from your cousin's trust. If your aunt freely and voluntarily appointed her attorney as guardian your only recourse will be to challenge his actions as conservator of your cousin's trust. The no contest clause in the will prohibits you from challenging his status as guardian.

If the attorney appointed himself guardian after your aunt's death, or you can show the appointment was coerced or involuntary, you could challenge both his status as guardian and his use of your cousin's trust assets.

If you'd like to schedule an appointment to consult with an attorney in my office feel free to contact me.

Best Regards,

Jim Herbe

Re: Contesting a will

In one of several Nevada Supreme Court desicions resulting directly from what was, perhaps, the nastiest probate in our State's history, the Court determined that a "no contest" provision, such as you are querying about here, was invalid to disinherit an otherwise qualified heir to the estate. In that will, it was stated that anyone who contested it would receive $1 and no more. When the son of the decedent brought the contest, the estate tried to invoke the clause but was shot down by the trial judge, whose decision was upheld by the Supreme Court. The rationale was that he was a "pretermitted heir" who could rely on the presumption that the testator "forgot" him and did not clearly disinherit him by specific provision (and specifically by name).

Thus, it is generally considered by knowledgeable Nevada estate planning and probate counsel that such provisions are considered in our State to be contrary to public policy and unenforceable under the law. Of course, they are still (almost always) included in a will or trust as disincentive to anyone to bring a contest, but if the court won't enforce it, it is of no value.

I am certain the attorney representing your aunt's estate would never disclose and explain that to you!

The challenge you are presenting may not even implicate this provision he is looking to use to preclude you from challenging his actions. He owed specific duties to your aunt and to your cousin, and if your facts can be established and proven, you have a very strong case against this fiduciary for violation of those very important duties.

You really need to retain an attorney who is well-versed in Nevada probate law and willing to fight for your right to nail this guy for his misconduct!