Law of Wills, 2016A

Andrews, 125 Nev. 397, 406, 215 P.3d 27, 32-33 (2009).
The 1995 letter is a valid will
Melton’s half-sisters assert that the 1995 letter is simply a letter and nothing more. They emphasize
that the 1995 letter was discovered amongst miscellaneous papers in Melton’s home, in contrast to
the 1975 will, which was found carefully placed in a safe. Thus, Melton’s half-sisters argue that if
Melton intended for the 1995 letter to be his will, he would have treated it as carefully as the 1975
will. Therefore, they contend that because the 1995 letter is not a valid will, the 1975 will still
controls the distribution of Melton’s estate.
Nevada law gives holographic wills the same effect as formally executed wills. NRS 133.090(3). “A
holographic will is a will in which the signature, date and material provisions are written by the hand
of the testator, whether or not it is witnessed or notarized.” NRS 133.090(1).
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The 1995 letter was written, signed, and dated by Melton. It contains the material provisions of a
will because it provided that Kelleher should receive Melton’s estate and that his relatives should
receive nothing. Although Melton did not store the 1995 letter in the same manner that he stored
the 1975 will, its validity as a holographic will does not depend upon him doing so. Melton’s
testamentary intent is evinced by his references to his mother’s funeral, her untimely death, and his
statement that he “had better leave something in writing.” Accordingly, we conclude that the 1995
letter is a valid holographic will.
The disinheritance clause contained in the 1995 letter is enforceable
Having concluded that the 1995 letter is a valid holographic will, we now consider the State’s
contention that the district court erred in applying the prevailing common law rule regarding
disinheritance clauses and thereby deeming the disinheritance clause unenforceable. We begin our
analysis of this contention by providing a background on the common law disinheritance rules, the
criticisms thereof, and the modern treatment of disinheritance provisions. Next, we consider the
parties’ specific arguments regarding whether NRS 132.370 reverses the common law disinheritance
rules in Nevada.
Background on disinheritance clauses
Under the common law, two general rules, known as the “English rule” and the “American rule,”
have been developed by courts considering whether to enforce disinheritance provisions as to
property passing by intestate succession. Under the English rule, a disinheritance provision, or a socalled
“negative will” was enforceable only if “the testator clearly expressed an intent to limit an heir
to the devise (if any) contained in the will, and at least one other heir remained eligible to receive the
intestate property.” Under the American rule, a testator could “prevent an heir from receiving his
share of any property that passes by intestacy only by affirmatively disposing of the entire estate
through a will.”
As its name suggests, the majority of jurisdictions subscribe to the American rule. See, e.g., In re
Barnes’ Estate, 63 Cal.2d 580, 47 Cal.Rptr. 480, 407 P.2d 656, 659 (1965) (“It is settled that a
disinheritance clause, no matter how broadly or strongly phrased, operates only to prevent a
claimant from taking under the will itself, or to obviate a claim of pretermission. Such a clause does
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