Nevada § 137.005 - Enforcement of no-contest clauses; exceptions; application to testamentary trusts; authorized actions by personal representative regarding distributions; application to codicil

§ 137.005. Enforcement of no-contest clauses; exceptions; application to testamentary trusts; authorized actions by personal representative regarding distributions; application to codicil

1. Except as otherwise provided in subsection 4, a no-contest clause in a will must

be enforced, to the greatest extent possible, by the court according to the terms

expressly stated in the no-contest clause without regard to the presence or absence

of probable cause for, or the good faith or bad faith of the devisee in, taking the

action prohibited by the no-contest clause. A no-contest clause in a will must be enforced by the court because public policy

favors enforcing the intent of the testator. 2. No extrinsic evidence is admissible to establish the testator's intent concerning

the no-contest clause to the extent such intent is clear and unambiguous. The provisions of this subsection do not prohibit extrinsic evidence from being

admitted for any other purpose authorized by law. 3. Except as otherwise provided in subsection 4, a devisee's share may be reduced

or eliminated under a no-contest clause based upon conduct that is set forth by the

testator in the will, including, without limitation, any testamentary trust established

in the will. Such conduct may include, without limitation: (a) Conduct other than formal court action; and (b) Conduct which is unrelated to the will itself, including, without limitation: (1) The commencement of civil litigation against the testator's probate estate or

family members; (2) Interference with the administration of a trust or a business entity; (3) Efforts to frustrate the intent of the testator's power of attorney; and (4) Efforts to frustrate the designation of beneficiaries related to a nonprobate

transfer by the testator. 4. Notwithstanding any provision to the contrary in the will, a no-contest clause

in a will must not be enforced by a court and a devisee's share must not be reduced

or eliminated under a no-contest clause in a will because: (a) A devisee acts to: (1) Enforce the clear and unambiguous terms of the will or any document referenced

in or affected by the will; (2) Enforce the legal rights of the devisee that provide the devisee standing in the

probate proceeding; (3) Obtain court instruction with respect to the proper administration of the estate

or the construction or legal effect of the will or the provisions thereof; or (4) Enforce the fiduciary duties of the personal representative. (b) The court determines by clear and convincing evidence that the conduct of the

devisee was: (1) A product of coercion or undue influence; or (2) Caused by the lack of sufficient mental capacity to knowingly engage in the conduct. (c) A devisee or any other interested person enters into an agreement to settle a

dispute or resolve any other matter relating to the will. (d) A devisee institutes legal action seeking to invalidate a will if the legal action

is instituted and maintained in good faith and based on probable cause. For the purposes of this paragraph, legal action is based on probable cause where,

based upon the facts and circumstances available to the devisee who commences such

legal action, a reasonable person, properly informed and advised, would conclude that

the will is invalid. 5. As to any testamentary trust, the testator is the settlor. Unless the will expressly provides otherwise, a no-contest clause in a will applies

to a testamentary trust created under that will and the provisions of NRS 163.00195 apply to that trust. 6. Where a devisee takes action, asserts a cause of action or asserts a request for

relief and such action or assertion violates a no-contest clause in a will, this section

must not prevent the enforcement of the no-contest clause unless the action, cause

of action or request for relief claims one of the exceptions to enforcement set forth

in subsection 4. 7. Except as otherwise provided in subsection 4, subject to the discretion of the

personal representative, as applicable: (a) A personal representative may suspend distributions to a devisee to the extent

that, under a no-contest provision, the conduct of the devisee may cause the reduction

or elimination of the interest of the devisee in the trust. (b) Until a court determines whether the interest of the devisee in the will has been

reduced or eliminated, a personal representative may: (1) Resume distributions that were suspended pursuant to paragraph (a) at any time;

or (2) Continue to suspend those distributions. (c) To the extent that a devisee has received distributions prior to engaging in conduct

that potentially would have caused the reduction or elimination of the interest of

the devisee in the will under a no-contest clause, a personal representative may seek

reimbursement from the devisee or may offset those distributions. 8. A no-contest clause in a will applies to a codicil even if the no-contest clause

was not expressly incorporated in the codicil. 9. As used in this section, “ no-contest clause ” means one or more provisions in a will that express a directive to reduce or eliminate

the share allocated to a devisee or to reduce or eliminate the distributions to be

made to a devisee if the devisee takes action to frustrate or defeat the testator's

intent as expressed in the will. The term does not include: (a) Provisions in a will that shift or apportion attorney's fees and costs incurred

by the estate against the share allocated to a devisee who has asserted an unsuccessful

claim, defense or objection; (b) Provisions in a will that permit a personal representative to delay distributions

to a devisee; (c) Provisions in a will that require the arbitration of disputes involving the will;

or (d) A forum selection clause in the will.