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In re Estate of Prestie

Nevada Supreme Court
138 P.3d 520 (2006)



Although Maria (plaintiff) and W.R. Prestie were first married in 1987 and divorced two years later, they remained friendly and eventually both moved to Las Vegas, living separately at first and later together when W.R.’s sight was declining and Maria moved in to help care for him in 2001. Shortly after Maria moved in, W.R. amended the W.R. Prestie Living Trust (the Trust), which he executed in 1994 after his divorce from Maria and made his son, Scott Prestie (defendant), the trustee and beneficiary of the Trust. The amendment granted Maria a life estate in the condominium where they lived together. When W.R. had executed the original Trust in 1994, he also executed a pour-over will that devised his entire estate to the Trust. W.R. had not changed his will when he died nine months after remarrying Maria. Maria sought to take half of W.R.’s estate in intestacy under Nev. Rev. Stat. 133.110. Pursuant to Nev. Rev. Stat. 133.110, if a spouse who marries the testator after the making of his will survives the testator and the will neither provides for the surviving spouse nor indicates an intention to exclude the surviving spouse, and no marriage contract was entered into, the will is revoked as to the surviving spouse. Nev. Rev. Stat. 133.110 stated further that “no other evidence to rebut the presumption of revocation shall be received.” Scott opposed Maria’s claim, asserting that Nev. Rev. Stat. 133.110 did not apply because W.R. had provided for Maria by amending the Trust. The probate court held that the amendment to the Trust did not constitute a provision for Maria in the will and recommended revocation of the will pursuant to Nev. Rev. Stat. 133.110. The district court adopted this recommendation and Scott appealed.

Rule of Law


Holding and Reasoning (Hardesty, J.)

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