December 2006
FAMILY LAW NEWS
Love, Death, and the Bar Exam
By Mary Anne Decaria, Esq.
If you had to write a question for the bar exam, could you come up with one which combines an old fashioned love story with obtuse issues involving wills and trusts, conflicts of law, rules of statutory construction, equitable estoppel and a dash of greed? The Nevada Supreme Court recently had to answer such a question in the case of In the Matter of the Estate of W.R. Prestie, 122 Nev. Adv. Op. 70, 138 P.3d 520 (2006).
Facts.
Maria and W.R. Prestie, California residents, married in Las Vegas in 1987 and divorced two years later, but remained on good terms. When W.R. began suffering the effects of macular degeneration and moved to Las Vegas, Maria followed him, but maintained her own separate residence. In 1994, W.R. simultaneously executed an inter vivos trust and a pour-over will in California naming his son, Scott, as trustee and sole beneficiary.
As W.R.’s eyesight declined, Maria took him to the doctor and cooked and cleaned for him. In 2000, she moved into W.R.’s condominium to take care of him. In 2001, W.R. amended his inter vivos trust, but not his will, to give Maria a life estate in his condominium upon his death. A few weeks later Maria and W.R. re-married, but W.R. did not survive to their first anniversary.
Maria petitioned the probate court for a one-half intestate succession share of W.R.’s estate on the basis that his will was revoked as to her upon their marriage under NRS 133.110. The probate court granted her petition, finding that the couple married without a marriage contract and W.R.’s will did not affirmatively state his intention to provide or not to provide for Maria. W.R.’s son, Scott, not happy at the prospect of sharing his father’s estate with his stepmother, appealed.
Scott asserted four arguments on appeal: (1) California law controls the terms of W.R.’s trust and will; (2) W.R.’s amendment of the trust rebutted the presumption of revocation of his will as to Maria; (3) NRS Title 13 (Trusts) barred Maria’s claim of unintentionally omitted spouse under NRS Title 12 (Wills); and (4) Maria was equitably estopped from asserting an unintentionally omitted spouse claim because she was provided for under the terms of W.R.’s amended trust which granted her a life estate in his condominium.
Choice of Law.
W.R.’s will provided that his estate may be administered under the California Independent Administration of Estates Act and his trust defined itself as a California contract, the validity of which was to be determined under California law. From those provisions, Scott extrapolated his argument that the Nevada probate court erred by not applying California law and if it had, the outcome would have been in his favor.
The Nevada Supreme Court disagreed with Scott, finding that W.R.’s reference in his will to the California Estates Act was not a choice of law provision, but simply allowed the probate court discretion to apply the California Act in administering his estate. As to W.R.’s trust, the section referencing California law applied only if there was an issue of trust validity, which there was not. Because W.R. was a Nevada resident and owner of real property in Nevada at the time of his death, the Supreme Court found that Nevada law controls.
Statutory Construction/Omitted Spouse.
The Supreme Court reviews questions of statutory construction de novo. Estate of Prestie at 8.1
Statutes governing the revocation of wills are strictly construed.2 Unless a statute is ambiguous, we attribute the plain meaning to the statute’s language.3 Whether a statute is deemed ambiguous is dependent upon whether the statute’s language is susceptible to two or more reasonable interpretations.4 Id.
Under NRS 133.110, a will is presumptively revoked if the testator marries after executing his will and his spouse survives him. The statute provides:
If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.
The sole purpose of [NRS 133.110] is to guard against the unintentional disinheritance of the surviving spouse. Id. at 9.5 Thus, the only evidence admissible to rebut the presumption of revocation for the purposes of NRS 133.110 is a marriage contract, a provision providing for the spouse in the will, or a provision in the will expressing an intent to not provide for the spouse. Id.6
Amendment to an inter vivos trust providing for a spouse is not admissible to rebut the presumption of a will’s revocation. AThe plain language of NRS 133.110 dictates otherwise, and we will not engraft, by judicial legislation, additional requirements upon the clear and unambiguous provisions of NRS 133.110. Id. at 10.7
Although estate planning often involves a revocable inter vivos trust with pour-over will, A[g]iven the clear and unambiguous language of NRS 133.110, we caution that a testator must modify his or her will in order to avoid the consequences resulting from the unintentional omission of a surviving spouse pursuant to NRS 133.110.@ Id., n.13.
W.R.’s will was executed before he married Maria. The couple never executed a marriage contract and W.R.’s amendment to his trust did not constitute one. W.R.’s will was totally silent as to Maria and thus did not state his intention to provide or not to provide for her. Therefore, Maria could seek protection under NRS 133.110 and W.R.’s will was effectively revoked as to Maria.
Revocation of a will under NRS 133.110 is totally unrelated to a trust proceeding. Although NRS 164.005 specifically mentions NRS Chapters 132, 153 and 155, it does not reference NRS Chapter 133. [T]he mention of one thing implies the exclusion of another. Id. at 13.8 By mentioning select chapters, we can imply that the Legislature’s exclusion of other chapters was intentional. Nothing in NRS 164.005 or NRS Title 13 [trusts] contemplates the application of trust amendments in satisfaction of NRS 133.110. Id. at 13, 14.
Equitable Estoppel.
The Supreme Court rejected Scott’s argument that Maria should be equitably estopped from asserting intestate succession rights as an unintentionally omitted spouse because she continued to live in W.R.’s condominium after his death, with all expenses being paid by his inter vivos trust. [E]quitable estoppel functions to prevent the assertion of legal rights that in equity and good conscience should not be available due to a party’s conduct. Id. at 15.9 The Supreme Court held that the doctrine of equitable estoppel did not apply to the facts before it because Maria’s right to a life estate in the condominium derived from W.R.’s inter vivos trust, not his will. Her rights under the trust were totally independent of W.R.’s will, which contained no provision for Maria and made no mention of her. Having a beneficial interest in the trust does not preclude Maria from also obtaining an interest under the will. Consequently, we reject the notion that Maria’s entitlement under the inter vivos trust estops her from asserting her rights under the will. Id.
The Supreme Court affirmed the order of the probate court, concluding that an amendment to an inter vivos trust cannot rebut the presumption that a will is revoked as to an unintentionally omitted spouse. NRS 133.110 unambiguously permits three exceptions to rebut the presumption of revocation, and an amendment to an inter vivos trust is clearly not one of them. Id. at 16.
So, if this fact pattern were a bar exam question, how did the Supreme Court do? It passed with flying colors, of course. It is, after all, the Supreme Court, which is a Latin term meaning “We are always right.”
1. citing Firestone v. State, 120 Nev. 13, 16, 83 P.3d 279, 281 (2004)
2. citing Todora v. Todora, 92 Nev. 566, 568, 554 P.2d 738, 739 (1976)
3. citing Firestone, supra.
4. citing Clark County Education Association v. Clark County School District, 122 Nev. ___, 131 P.3d 5, 10 (2006)
5. citing Leggett v. Estate of Leggett, 88 Nev. 140, 143, 494 P.2d 554, 557 (1972)
6. citing Leggett, supra, at 144
7. citing Leggett supra, at 143
8. citing State v. Wyatt, 84 Nev. 731, 734, 448 P.2d 827, 829 (1968)
9. citing Matter of Harrison Living Trust, 121 Nev. __, 112 P.3d 1058 (2005), (quoting Topaz Mutual Co. v. Marsh, 108 Nev. 845, 853, 839 P.2d 606, 611 (1992)