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Testamentary Wills

When an individual dies with a valid will, they are considered to have died “testate.” Compared to an individual who dies intestate, meaning without a valid will, a testator will have their property distributed in accordance with his or her intentions. This allows an individual to dispose of property in accordance with their actual intention, rather than the presumed intention that is inferred when an individual dies intestate. The problem with a will as a legal document is that it takes effect once the testator dies. This brings up a legal notion called the “worst evidence rule,” which signifies that the best witness to be able to verify, clarify, and affirm that their property is distributed in the way they wish has passed away. Because of this notion, states have proscribed necessary elements that give insight to the authenticity, voluntariness, and meaning of the intentions of the will.

The requirements of a will have evolved throughout recent history. The most recent version of the Uniform Probate Code requires three elements to validate the will. UPC § 2–502(a). They are the following: 1) a writing; 2) signed by the testator or by an individual in the testator’s “conscious presence” directed by the testator; and 3) either signed by two witnesses within a reasonable time after witness saw the testator sign, or notarized by a public notary. Id. Testators may also elect to have the witnesses sign a testamentary affidavit. An affidavit is a voluntary oath that states the facts present are true and given before either a judge or an officer of the court. Lutz v. Kinney, 23 Nev. 279, 282, 46 P. 257, 258 (1896). What a testamentary affidavit accomplishes is a layer of security that the witnesses who attested to the testator’s will did actually attest to it, with a sworn statement that a court will use if there are any issues in probate. 

Nevada law mirrors the wills formation found in the UPC. First, there is a requirement that the testator is of “sound mind,” and at the age of majority to dispose of all of his or her property. Nev. Rev. Stat. § 133.020. Further, Nevada requires the same three elements of a signature, a writing, and two witness attestations for a will to be valid. NRS § 133.040. Nevada also requires specific writing to be included for the will to be a valid will, including the date of exaction, a title that indicates the purpose of the paragraph, a reasonable description of the items that will be disposed of, the names of the devisees, and the testator’s signature. NRS § 133.045(2). Nevada law also allows for a testamentary affidavit for the witnesses to sign. NRS § 133.050(1). Under penalty of perjury, this affidavit allows the court to see that the facts of the will are proven. Id.

For security of a descendant’s property, it is always better to die testate compared to dying intestate. Testacy allows for an individual to dispose of property in accordance with their intentions. The will requires certain elements to be included to consider the will valid. Ultimately, a will, and the requirements of the will, allow security for the testator, to which he would not be able to provide after he is deceased.

Thanks to a sexual assault lawyer with our friends at Eglet Adams for their insight in testamentary wills. If you have lost someone to an assault and need help understanding their will, contact a lawyer near you for help.