Undue Influence in Nevada: What It Is and How to Prove It

Simply put, undue influence is a legal concept in Nevada that courts can use to invalidate an estate planning document when it was made by someone whose free will was overcome by someone else’s pressure. People are generally free to give what they have to whomever they choose, and an unnatural disposition or sudden change of heart toward the end of that person’s life may indeed reflect their true wishes. But it may also be the product of undue influence and, thus, a good reason to contest a will or trust.

Cases of undue influence are commonly associated with elder abuse and caregiver misconduct. Such cases often arise from the sudden insertion of a previously unknown party into the life of a vulnerable person, but they also frequently arise within families, such as when one sibling isolates a parent from other siblings and loved ones.

Whatever form it takes, the pattern is often similar: the vulnerable person is cut off from other trusted relationships and influenced until a new estate plan is created that goes against their previously expressed wishes.

When Does Influence Become “Undue”?

Not every kind of pressure or persuasion is undue influence. Family members and close friends argue, flatter, plan, beg, and make their wishes about a parent’s belongings known all the time. These are natural forms of influence, not unlawful ones.

The legal standard for undue influence in Nevada is that the influence must have “destroy[ed] the free agency of the testator.” In re Estate of Hegarty, 46 Nev. 321, 326, 212 P. 1040, 1042 (1923). Undue influence may be established “either directly or by justifiable inference from the facts proved.” Id.

This standard was reaffirmed in Caraveo v. Perez (In re Estate of Bethurem), 129 Nev. 869, 874, 313 P.3d 237, 241 (2013). Put simply, the law prohibits influence that substitutes the influencer’s wishes for the testator’s own. The key question is whether the persuasion leaves the person being influenced free to say no.

How Do You Prove Undue Influence in Nevada?

In practice, litigation typically turns on whether a presumption applies, either by statute or under the common law.

Statutory Presumption

NRS 155.097 presumes a transfer void when the transferee or beneficiary:

1. Drafted the transfer instrument;
2. Was a paid caregiver of a dependent adult transferor;
3. Materially participated in formulating the dispositive provisions or paid for the drafting; or
4. Is related to, affiliated with, or subordinate to anyone in categories one through three.

Once the presumption applies, the burden flips to the transferee, who must prove by clear and convincing evidence, a higher standard than a preponderance of the evidence, that the transfer was not the product of fraud, duress, or undue influence, unless an exception applies.

Exceptions include:

1. The beneficiary is the transferor’s spouse;
2. The change results in a transfer to an heir that does not exceed the heir’s intestate share; or
3. A valid Certificate of Independent Review exists under NRS 155.0975.

Certificate of Independent Review

A Certificate of Independent Review (“CIR”) under NRS 155.0975 offers a powerful safeguard against challenges based on undue influence. To obtain a CIR, an independent attorney meets with the transferor, explains the nature and consequences of the transfer, and evaluates whether it appears to be the product of fraud, duress, or undue influence.

If the attorney then signs a certificate in substantially the form required by the statute, the statutory presumption of invalidity under NRS 155.097 no longer applies. The burden remains with the challenger to prove undue influence by a preponderance of the evidence. NRS 155.0975(4).

A CIR does not eliminate a separately alleged common-law presumption in the same way, but it can serve as strong evidence toward rebutting one.

Common-Law Presumption

Nevada also recognizes a common-law presumption separate from the statutory presumption: “[a] presumption of undue influence arises when a fiduciary relationship exists and the fiduciary benefits from the questioned transaction.” Bethurem, 129 Nev. at 874, 313 P.3d at 241.

This rule traces back to the Nevada Supreme Court’s earlier determination that a conveyance “by the weaker to the dominant party” in a confidential relationship raises a presumption of undue influence. Schmidt v. Merriweather, 82 Nev. 372, 376, 418 P.2d 991, 993 (1966).

Once the presumption is raised, the benefitting fiduciary must rebut it by clear and convincing evidence.

When a presumption of undue influence applies, the stakes change dramatically. The alleged influencer must affirmatively prove that the gift was genuine, rather than merely argue that the contestant has not proven otherwise.

Factors for Determining Undue Influence Without a Presumption

Even where no presumption applies, undue influence can still be proven by a preponderance of the evidence through circumstantial proof. Because direct evidence of undue influence is rarely available, Nevada allows it to be shown “either directly or by justifiable inference from the facts proved.” Hegarty, 46 Nev. at 326, 212 P. at 1042.

In weighing circumstantial evidence, Nevada courts consider factors such as:

• The alleged influencer’s dependent or fiduciary relationship with the testator;
• The testator’s mental or physical weakness;
• The testator’s financial need;
• The testator’s ignorance of the circumstances; and
• The testator’s lack of independent advice.

Peardon v. Peardon, 65 Nev. 717, 767, 201 P.2d 309, 333 (1948).

No one factor is independently decisive. Courts weigh the factors together against the totality of the circumstances. Id.

A testator does not need to be legally incompetent to be vulnerable to undue influence. The Nevada Supreme Court has explained that a gift will be presumed the product of undue influence where the donor lacks “such mental vigor as to enable him to protect himself against imposition,” even if that weakness falls short of total incapacity. Ross v. Giacomo, 97 Nev. 550, 556, 635 P.2d 298, 302 (1981).

What to Do Next

If you believe a loved one’s estate plan was the product of undue influence, act promptly and gather evidence while memories are fresh and records remain available. Will contests are subject to strict deadlines.

If you are an estate planning client or attorney seeking to prevent future challenges, careful documentation of the testator’s capacity and independence, the use of independent counsel, and avoiding any role for potential beneficiaries in the drafting process are essential safeguards.

This is a complex, fact-intensive area of law where outcomes often turn on the specific relationships, timing, and quality of the evidence. Anyone with questions about a potential claim, whether as a contestant or a beneficiary, should consult with an experienced Las Vegas trust and estate attorney at Solomon, Dwiggins, Freer & Steadman, Ltd.

This article is for general informational purposes only and does not constitute legal advice. Please consult a qualified Nevada attorney regarding your specific circumstances.