In re Estate of Sweet , 2022 NV 68 ( 2022 )

138 Nev., Advance Opinion 6,13
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
IN THE MATTER OF THE ESTATE OF No. 83342-COA
MARILYN WEEKS SWEET,
DECEASED.
CHRISTY KAY SWEET,
Appellant,
vs.
!i A. as- Wti
CHRIS HISGEN, 714E.0
r
Respondent.
Appeal from a district court order admitting a will to probate.
Eighth Judicial District Court, Clark County; Gloria Sturrnan, Judge.
Affirmed.
Dickinson Wright PLLC and Kerry E. Kleiman and Michael N. Feder, Las
Vegas,
for Appellant.
Blackrock Legal, LLC, and Thomas R. Grover and Michael A. Olsen, Las
Vegas,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
OPINION
By the Court, GIBBONS, C.J.:
In this appeal, we consider whether the district court properly
admitted a will to probate that was drafted by or for the decedent in
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Portugal and was written in Portuguese, where the decedent was domiciled
in Maryland and the pertinent property of the estate at death was a house
in Nevada. At issue is whether the will was valid under the Uniform
International Wills Act—codified as NRS Chapter 133A—and in particular,
whether the will was signed by an "authorized person," who acts as a
supervising witness, under the Act. Alternatively, we address whether a
district court may properly admit a will to probate under NRS Chapter 133
if it is not valid under NRS Chapter 133A. Finally, we are asked to interpret
the scope of the devise made under the language of the will.
We conclude that the laws of relevant foreign states must be
taken into consideration when evaluating the identity of an "authorized
person" for the purpose of implementing the Uniform International Wills
Act. Additionally, we conclude that the plain and ordinary meaning of the
relevant statutes provides for a will to be probated under NRS Chapter 133
if it fails to conform with NRS Chapter 133A. We also conclude that the
district court did not err in applying the will at issue here to the decedent's
entire estate and that appellant was not entitled to a will contest during the
proceedings below. For the reasons articulated herein, we affirm the
district court's order.
FACTS AND PROCEDURAL HISTORY
In 2006, Marilyn Weeks Sweet, then domiciled in Maryland,
executed a will in Tavira, Portugal. The will was written in Portuguese. It
was signed and overseen by a notary, and it bore the signatures of two
additional witnesses, which were notarized. In 2020, Marilyn died in
Nevada. Her estate at the tirne of her death was comprised of one home in
Las Vegas, titled in her name and worth an estimated $530,085.
Respondent Chris Hisgen, Marilyn's surviving spouse, filed a
petition for general administration of the estate and to admit the will to
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probate. Hisgen attached a translation of the will to his petition. The
translation was done by Lori Piotrowski and reads as follows, in pertinent
part:
[Marilyn Weeks Sweet] establishes as universal
heir of all her goods, rights, and actions in Portugal,
Christopher William Hisgen,m single, adult, native
Washington, DC, United States of America, of
American nationality with whom she resides.
Should he have already died, on the date of her
death, Kathryn Kimberly Sweet, married, resident
of Arlington, Virginia, United States of America
and Christy Kay Sweet, single, adult, resident of
Thailand, will be her heirs.
Also attached to the petition was a waiver of notice signed by Kathryn
Kimberly Sweet, one of Marilyn's daughters.
Appellant Christy Kay Sweet (Sweet), Marilyn's other
daughter, filed an objection to Hisgen's petition, arguing that the will could
not be probated in Nevada because it was signed in a foreign country. Sweet
further argued that the will applied only to property in Portugal and did not
include the Nevada home. Hisgen filed a reply in support of his petition,
attaching three declarations. One was from a witness, attesting that the
individual had witnessed Marilyn execute the will. The other two
declarations appear to be from the same person, Isabel Santos—apparently
a Portuguese attorney and also a witness to Marilyn's will.2 In one
declaration, Santos attested that she had witnessed Marilyn execute the
lIn Portuguese, the will reads, in pertinent part, "[Marilyn Weeks
Sweet] [i]nstitui herdeiro universal de todos os seus bens, direitos e accões
em Portugal, Christopher William Hisgen . . . ."
0ne of the declarations is titled "Declaration of Isabel Pires Cruz
2
Santos." The other is titled "Declaration of Dra Maria Isabel Santos." Both
declarations bear the same signature, which reads Isabel Pires Cruz Santos.
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will. In the other, Santos attested that the will was valid under Portuguese
law. She additionally offered a translation of the will that differed slightly
from Piotrowski's translation. The Santos translation reads, in pertinent
part, "[Marilyn Weeks Sweet] [e]stablishes universal heir to all her assets,
rights and shares in Portugal, Christopher William Hisgen . . . ."
Following a hearing, the probate commissioner issued a report
and recommendation (R&R) regarding Hisgen's petition. The probate
commissioner concluded that the will was a valid international will under
NRS Chapter 133A. He alternatively concluded that even if the will was
invalid under NRS Chapter 133A, it could nevertheless be probated under
NRS 133.040.3 Finally, the probate commissioner concluded that the will
applied to the entire estate rather than only property situated in Portugal.
The probate commissioner therefore recommended that the will "be
admitted to probate under either NRS 133A.060 or NRS 133.040- l.1050" and
"be interpreted to dispose of the entirety of the [e] state to Illisgen]."
Sweet filed an objection to the commissioner's R&R, and the
district court held a hearing where the parties largely repeated the
arguments made before the probate commissioner. The only notable
difference between the hearings was that there was discussion before the
court as to whether the will was valid under NRS 133.080 (foreign execution
of wills) and no discussion as to NRS 133.040 (wills executed in Nevada).
After the hearing, the district court issued an order affirming the probate
3NRS 133.040 provides the requirements for a valid will executed in
Nevada. As discussed below, because the will was undisputedly executed
in Portugal rather than Nevada, the district court erred in accepting the
portion of the probate commissioner's R&R concluding that the will could
be admitted to probate under NRS 133.040, as the applicable provision is
NRS 133.080.
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commissioner's R&R in its entirety and admitting the will to probate. Sweet
timely appealed pursuant to NRS 155.190(2).
ANALYSIS
Sweet raises four primary arguments on appeal. First, she
argues the will did not meet the requirements for a valid international will
under NRS Chapter 133A, Nevada's codification of the Uniform
International Wills Act (UIWA). Second, she argues that the will could not
otherwise be probated under NRS Chapter 133—primarily focusing her
arguments on NRS 133.080(1) (foreign execution of wills). Third, Sweet
argues the will applied only to property located in Portugal. And fourth,
she argues, for the first time, that she was entitled to a will contest under
NRS Chapter 137. We address each of her arguments in turn.
The district court did not err in ruling that the will was a valid international
will under NRS Chapter 133A
Sweet argues the district court erred in ruling that the will was
a valid international will under NRS Chapter 133A. She argues the will
facially fails to comply with the requirements of that chapter because it
lacks the signature of an "authorized person" under NRS 133A.030 (defining
"authorized person" as a person admitted to practice law in Nevada or a
person empowered to supervise the execution of international wills by the
laws of the United States), does not include Marilyn's signature on each
page, and does not include a certificate attesting compliance with the
UIWA. Hisgen counters that Santos was an "authorized person" for
overseeing the execution of Marilyn's will because she is licensed to practice
law in Portugal. In the alternative, Hisgen argues that the Portuguese
notary was an "authorized person" because "Nevada state law allows for the
recognition of a foreign notarial act." He further argues that neither the
absence of Marilyn's signature on each page of the will nor the absence of
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the certificate of compliance is fatal to the validity of the will under NRS
Chapter 133A.
The validity of a will is a question of law we review de novo. See
In re Estate of Melton, 128 Nev. 34, 42, 272 P.3d 668, 673 (2012) (reviewing
the validity of a handwritten will de novo). Further, "NRS 133A.020 to
133A.100, inclusive, derive from Annex to Convention of October 26, 1973,
Providing a Uniform Law on the Form of an International Will. In
interpreting and applying this chapter, regard must be given to its
international origin and to the need for uniformity in its interpretation."
NRS 133A.110.
At the outset, we note that the UIWA is found in the Annex to
the Convention of October 26, 1973, Providing a Uniform Law on the Form
of an International Will. Convention Providing a Uniform Law on the Form
of an International Will, Resolution, art. I, ¶ 1, October 27, 1973, S. Treaty
Doc. No. 99-29 [hereinafter ULIW Convention]. Use of the exact text of the
Annex is mandatory in countries using primarily English, French, Russian,
or Spanish languages. Id. Explanatory Report, S. Treaty Doc. No. 99-29 at
11. While the text may be translated to other languages, like Portuguese,
the translators are not permitted to make even "small changes in the
presentation or vocabulary of the Uniform Law." Id. Therefore, because of
this uniformity, we may properly turn to Nevada's codification of the UIWA
to determine if the will complies with the UIWA while keeping in mind the
international origin of the act.
Nevada has adopted and codified the UIWA in NRS Chapter
133A. Within this chapter, the various requirements for a valid
international will are established. Some of these requirements are
mandatory to ensure the validity of an international will. See NRS
133A.060(2) (stating a will must be signed "in the presence of two witnesses
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and of a person authorized to act in connection with international wills"
(emphasis added)). However, failure to comply with other sections of the
chapter are not fatal to the validity of the will. See NRS 133A.070(4)
(explaining that a will executed in compliance with NRS 133A.060 "is not
invalid merely because it does not comply with" NRS 133A.070(1)'s
signature requirement); NRS 133A.090 ("The absence or irregularity of a
certificate does not affect the formal validity of a will under [NRS Chapter
133A]."). Thus, even though Marilyn's will did not have a signature on each
page or a certificate attached, these defects are not fatal to its validity. See
NRS 133A.070, NRS 133A.090.
We now turn to whether Marilyn's will complied with the
mandatory provisions of NRS 133A.060.4 As we noted above, to be valid
under NRS 133A.060(2), a will must be signed "in the presence of two
witnesses and of a person authorized to act in connection with international
wills." Nevada has defined an "authorized person" as either (1) a person
admitted to practice law in Nevada and who is in good standing as an active
law practitioner in Nevada, NRS 133A.120, or (2) a person empowered to
supervise the execution of international wills "by the laws of the United
States, including members of the diplomatic and consular service of the
United States designated by Foreign Service Regulations," NRS 133A.030.
Thus, a valid international will executed in Nevada would need to be signed
by either a Nevada attorney or someone authorized under the laws of the
4The parties only challenge the mandatory provision of NRS
133A.060(2). They do not dispute the other mandatory provisions of NRS
133A.060, so we need not address them. See Greenlaw v. United States, 554
U.S. 237, 243 (2008) ("[I]n both civil and criminal cases, in the first instance
and on appeal, we follow the principle of party presentation. That is, we
rely on the parties to frame the issues for decisions and assign to courts the
role of neutral arbiter of matters the parties present.").
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United States to execute international wills. This requirement must be
read with the understanding that regard is given to the "international
origin" of this statute and the need for international uniformity in
interpreting it. See NRS 133A.110.
The matter of determining an authorized person to execute a
uniform international will is to be decided by each nation. See ULIW
Convention, Resolution, art. I, ¶ 1, October 27, 1973, S. Treaty Doc. No. 99-
29 ("Each Contracting Party may introduce into its law such further
provisions as are necessary to give the provisions of the Annex full effect in
its territory."); id. Resolution, art. II, ¶ 1 ("Each Contracting Party shall
implement the provisions of the Annex in its law ... by designating the
persons who, in its territory, shall be authorized to act in connection with
international wills."); id. Resolution, art. III ("The capacity of the authorized
person to act in connection with an international will, if conferred in
accordance with the law of a Contracting Party, shall be recognized in the
territory of the other Contracting Parties."); id. Letter of Submittal, S.
Treaty Doc. No. 99-29 at 8 ("Given the differing national practices and
traditions with regard to the preparation of wills, the framers of the
Convention left it to each individual state becoming party to the Convention
to decide whom to delegate as its 'authorized person' ...."). Therefore,
when determining if a purported international will, signed in another
country, should be admitted to probate, the district court must first consider
if it complied with the UIWA requirements5 before turning to the laws of'
the signatory country to determine if the will was signed by an "authorized
person."
5Codified in Nevada as NRS Chapter 1.33A.
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Since the will was executed in Portugal, not Nevada, we must
turn to Portuguese law to determine who an "authorized person" is. See
ULIW Convention, Resolution, art. 11,1[1. We note logic and common sense
would dictate this course of action. The purpose of an international will
would be frustrated if testators were required to anticipate the exact
location where their will would be admitted to probate when they created
the will and identified an authorized person to sign the will. See S. Treaty
Doc. No. 99-29, 31 ("A will shall be valid as regards form, irrespective
particularly of the place where it is made, of the location of the assets and
of the nationality, domicile or residence of the testator.").
In the present case, Sweet's reading of the statute would have
required Marilyn, who apparently had no connection to Nevada at the time
the will was created, to ignore Portuguese law and Maryland law to comply
with Nevada law. This is an absurd requirement to read into the
Convention Providing a Uniform Law on the Form of an International Will
and NRS Chapter 133A, and we decline to do so. See Gallagher v. City of
Las Vegas, 114 Nev. 595, 599-600, 959 P.2d 519, 521 (1998) (holding that
statutory interpretation "should be in line with what reason and public
policy would indicate the legislature intended, and should avoid absurd
results").
At the outset of our analysis of Portuguese law, we note that
Portugal signed the Convention Providing a Uniform Law on the Form of
an International Will and consented to be bound to the document. U.S.
Dep't of State, Providing a Uniform Law on the Form of an International
Will, https://www.state.gov/wp-content/uploads/2021/08/Wills-status-table-
7.26.21.pdf (official list of signatory countries); Decreto no. 252/75 de 23 de
maio [Decree no. 252/75 of 23 May], https://files.dre.pt/ls/1975/05/11900/
07170722.pdf [https://perma.cc/LTP6-U5XP] (Portuguese decree signing on
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to the Convention Providing a Uniform Law on the Form of an International
Will).6 Additionally, an "authorized person" as defined by Portugal will be
recognized in Nevada, since the United States has also signed the
convention and Nevada has adopted the Annex to the UIWA derived
from the Convention. See ULIW Convention, Resolution, art. II, ¶ 1; U.S.
Dep't of State, Providing a Uniform Law on the Form of an International
Will, https://www.state.gov/wp-content/uploads/2021/08/Wills-status-table-
7.26.21.pdf (official list of signatory countries); NRS 133A.110.
A notary is a designated "authorized person" in Portugal. See
Decreto-Lei n.' 177/79, de 7 de junho [Decree-Law no. 177/79 of 7 June],
art. 1, https://files.dre.pt/ls/1979/06/13100/12821283.pdf [https://perma.cc/
6Z9U-83JZ] (Item 1 provides that each Contracting Party shall determine
the persons empowered to deal with matters relating to the international
will in its territory. Item 2 determines that Portuguese notaries will be
authorized persons.).7 Therefore, the signature of Joaquim August Lucas
6No official English translation of the source is available. Translation
assistance was provided by the Law Library of Congress Global Research
Directorate.
7No official English translation of the source is available. Translation
assistance was provided by the Law Library of Congress Global Research
Directorate and Google Translate. Relevant Portuguese text states,
1 — A Convençao Relativa a Lei Uniforme sobre a
Forma de Um Testamento Internacional, aprovada
para adesao pelo Decreto-Lei n." 252/75, de 23 de
Maio, prevê, no seu artigo II, a designagao, por cada
Parte Contratante, das pessoas habilitadas a tratar
das matérias relativas ao testamento internacional
no respectivo território.
2 — Considera-se no presente diploma que tal de-
signacao deverd recair sobre os notdrios e agentes
consulares portugueses ern servigo no estrangeiro,
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de Silva, a notary in Portugal, is the signature of an authorized person in
Portugal.8 This authorized person's signature must be recognized by
Nevada.
Accordingly, we conclude that the will was signed in the
presence "of a person authorized to act in connection with international
wills." NRS 133A.060(2). Thus, the district court did not err in finding that
the will met all the requirements for a uniform international will, although
we note the district court did not utilize the proper analysis to arrive at this
conclusion.9 See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592,
599, 245 P.3d 1198, 1202 (2010) (holding that we will affirm the district
já que, nos termos do Código do Notariado, o
tratamento daquelas matérias se insere
perfeitamente no Ambito da sua competência.
Google Translate translation of the text states,
1 — The Convention on the Uniform Law on the
Form of an International Will, approved for
accession by Decree-Law no. 252/75, of 23 May,
provides, in its article II, for the designation, by
each Contracting Party, of the persons authorized
to deal with matters relating to the international
will in their respective territory.
2 — It is considered in the present diploma that
such designation should fall on Portuguese notaries
and consular agents in service abroad should be
appointed, since, under the terms of the Notary
Code, the treatment of those matters falls perfectly
within the scope of their competence.
8Hisgen does not provide, and we could not find, relevant Portuguese
law stating that Santos is an authorized person because she is an attorney
in Portugal.
9The district court did not look to see who qualified as an "authorized
person" in Portugal, probably because the parties did not request it to do so.
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court if it reaches the correct result, even if for the wrong reason). Next, we
turn to whether the district court erred in alternatively ruling that the will
could be probated under NRS Chapter 133.
The district court did not err in alternatively ruling that the will could be
admitted to probate under NRS Chapter 133
Sweet argues that the district court erred in concluding that,
even if Marilyn's will was not valid under NRS Chapter 133A, it could
nevertheless be probated under NRS Chapter 133. She argues that NRS
133.040, relating to wills executed in Nevada, is inapplicable to Marilyn's
will because the will was undisputedly executed outside of Nevada. Turning
to NRS 133.080(1), foreign execution of wills,'° Sweet argues that statute
should be interpreted to apply to "wills made in other states or wills made
in countries that have not adopted the [uniform] [i]nternational [w]ill
[requirements]." She argues the district court instead interpreted NRS
133.080(1) to be "a savings clause for international wills that fail to meet
the requirements of NRS [Chapter] 133A." This interpretation, according
to Sweet, renders NRS 133.080(1)'s "[e]xcept as otherwise provided in
chapter 133A" language superfluous.
Hisgen counters that NRS 133A.050(2) indicates that the
UIWA was not intended to supplant NRS Chapter 133. He argues the will
1°NRS 133.080(1) states,
Except as otherwise provided in chapter 133A of
NRS, if in writing and subscribed by the testator, a
last will and testament executed outside this State
in the manner prescribed by the law, either of the
state where executed or of the testator's domicile,
shall be deemed to be legally executed, and is of the
same force and effect as if executed in the manner
prescribed by the law of this State.
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could be admitted to probate under NRS 133.080(1) because it was a valid
will in Portugal, where it was executed. He further argues that NRS
133.080(1) allows the will to be probated because it was a valid will in
Maryland, where Marilyn was domiciled when the will was executed.
"The construction of a statute is a question of law, which we
review de novo." Orion Portfolio Serus. 2, LLC v. County of Clark, 126 Nev.
397, 402, 245 P.3d 527, 531 (2010). Where a statute is clear and
unambiguous, we give "effect to the plain and ordinary meaning of the
words" without resorting to the rules of statutory construction. Id. NRS
Chapter 133A defines "international will" as "a will executed in conformity
with NRS 133A.050 to 133A.080 inclusive." NRS 133A.040. However,
failure to conform with those provisions "does not affect [the will's] formal
validity as a will of another kind." NRS 133A.050(2). Nevada deems as
legally valid a will executed outside the state, provided it complies with the
law "where executed or of the testator's domicile." NRS 133.080(1).
NRS 133A.050(2) and NRS 133.080(1) are clear and
unambiguous. NRS 133A.050(2) states that the invalidity of a will as an
international will—defined as a will that complies with the UIWA—does
not affect its validity as a will of another kind. NRS Chapter 133 provides
for different types of wills, all of which can be probated in Nevada. See, e.g.,
NRS 133.040 (requirements for wills executed in Nevada); NRS 133.080
(requirements for foreign wills); NRS 133.085 (requirements for electronic
wills); NRS 133.090 (requirements for a holographic will). Reading the two
statutes together, there is nothing preventing a will that fails to comply
with the UIWA from being admitted to probate under one of the provisions
in NRS Chapter 133.
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This reading of the statute gives effect to the plain and ordinary
meaning of the words in NRS 133A.050(2) and NRS 133.080. See Orion
Portfolio Servs., 126 Nev. at 402, 245 P.3d at 531. A plain reading of the
statutes does not support Sweet's argt.iment that NRS 133.080 cannot apply
to wills executed in countries that have adopted the uniform international
will requirements because no language within the statute supports that
assertion. Additionally, our reading is supported by the legislative history
of NRS Chapter 133A. At an assembly hearing on Senate Bill 141—which
would become NRS Chapter 133A—Senator Terry Care testified that
"Nevada will recognize a will validly executed in another state and probably
would recognize in most instances a will executed in another country."
Hearing on S.B. 141 Before the Assemb. Comm. on Judiciary, 75th Leg. Sess.
3 (Nev. 2009). According to Senator Care, a primary purpose of NRS
Chapter 133A was to give a Nevadan with property in a foreign country the
ability to sign a uniform will as to the disposition of that property "despite
any variance with local requirements." Id. The legislative history also
addresses the "except as otherwise provided in Chapter 133A of NRS"
language from NRS 133.080. That language was added to NRS 133.080 "so
if a will is executed in conformity with the requirements of an international
will [but] may not meet the requirements of the place where it is made, it
can still be a valid international will." Hearing on S.B. 141 Before S. Comm.
on Judiciary, 75th Leg. Sess., at 13 (Nev. 2009) (statement of Natalee
Binkholder, Deputy Legis. Counsel).
Here, NRS 133.080(1) provides for the will to be probated as a
foreign will. Sweet does not dispute Hisgen's argument that the will was
valid under Maryland law or that Marilyn was domiciled in Maryland at
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the time the will was executed." Accordingly, the will could have been
properly admitted to probate in Nevada as a will valid in Maryland under
NRS 133.080(1). Sweet also did not dispute below that Marilyn's will was
legally valid in Portuga1,12 nor does she dispute that the will was executed
in Portugal. This provides a second ground upon which the will could have
been properly admitted to probate under NRS 133.080(1)—as a valid
Portuguese will. In sum, a plain reading of NRS 133A.050(2) in conjunction
with NRS 133.080(1) means that a will that fails to comply with the UIWA
may nevertheless be probated in Nevada, even if it was executed
internationally.
As noted above, the probate commissioner concluded in his R&R
that the will could be probated under NRS 133.040 because it "facially" met
that section's requirements. And the district court affirmed the R&R in its
entirety. However, NRS 133.040 applies only to wills executed in Nevada.
The district court therefore erred in concluding that the will could be
11 We consider this lack of response to be a concession by Sweet that
Hisgen is correct. See Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 563, 216
P.3d 788, 793 (2009) (treating a party's failure to respond to an argument
as a concession that the argument is meritorious); Colton v. Murphy, 71
Nev. 71, 72, 279 P.2d 1036, 1036 (1955) (concluding that when respondents'
argument was not addressed in appellants' opening brief, and appellants
declined to address the argument in a reply brief, "such lack of
challenge . . . constitutes a clear concession by appellants that there is merit
in respondents' position").
12 0n appeal, Sweet appears to challenge the validity of Marilyn's will
under Portuguese law because the will left nothing for her children—
something Sweet alleges is required in Portugal. However, Sweet failed to
raise this argument, or any other argument challenging the validity of the
will under Portuguese law, during the proceedings below and has thereby
waived it on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623
P.2d 981, 983 (1981) (explaining that issues not argued below are "deemed
to have been waived and will not be considered on appeal").
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admitted to probate under NRS 133.040. Nevertheless, we affirm the
district court's order because, as explained above, the will could have been
properly admitted to probate under NRS 133.080(1). See Saavedra-
Sandoval, 126 Nev. at 599, 245 P.3d at 1202 (providing this court will affirm
the district court if it reaches the correct result, even if for the wrong
reason). Having concluded that the district court properly admitted
Marilyn's will to probate, we now turn to whether the district court properly
interpreted the will.
The district court did not err in ruling that the will applied to the entire
estate
The record includes two slightly different translations of the
will." The Piotrowski translation, used by the district court, reads,
"[Marilyn Weeks Sweet] establishes as universal heir of all her goods,
rights, and actions in Portugal, Christopher William Hisgen ...." The
Santos translation reads, "[Marilyn Weeks Sweet] [e]stablishes universal.
heir to all her assets, rights and shares in Portugal, Christopher William
Hisgen ...." Sweet argues that the modifier "in Portugal" in the will
applies to the entire preceding clause, not just "actions" in the Piotrowski
translation or "rights and shares" in the Santos translation. She therefore
argues that the wi]l applied only to property situated in Portugal. Hisgen
counters that wills must be interpreted in such a way as to avoid intestacy.
13The district court failed to certify a correct English translation of
the will. See NRS 136.210 ("If the will is in a foreign language the court
shall certify to a correct translation thereof into English and the certified
translation shall be recorded in lieu of the original."). Neither party raises
this as an issue on appeal, so we do not need to address it. See Greenlaw
554 U.S. at 243 ("[W] e rely on the parties to frame the issues for decisions
and assign to courts the role of neutral arbiter of matters the parties
present."). We note that the Piotrowski translation was attached to the will
admitted to probate and was relied upon by the district court.
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(7) I 9471,1
He argues that Sweet's interpretation of the will would effectively subject
the entire estate to intestacy because the only known asset is situated in
Nevada.
Where ambiguity exists in a will, we turn to rules of
construction in construing the testatrix's intent. Lamphear v. Alch, 277
P.2d 299, 302 (N.M. 1954).14 "A will is ambiguous if the testator's intent is
unclear because words in the will can be given more than one meaning or
are in conflict." In re Estate of Lello, 50 N.E.3d 110, 113 (Ill. App. Ct. 2016)
(quoting Coussee v. Estate of Efston, 633 N.E.2d 815, 818 (Ill. App. Ct.
1994)).15 Here, the modifier "in Portugal" could be read to apply either to
14See also In re Estate of Lello, 50 N.E.3d 110, 120 (Ill. App. Ct. 2016)
("As a rule of construction . . . the presumption against intestacy only comes
into play after an ambiguity is found." (quoting Coussee v. Estate of Efston,
633 N.E.2d 815, 818 (Ill. App. Ct. 1994)); Thurmond v. Thurmond, 228 S.W.
29, 32 (Ky. 1921) ("[The presumption against partial intestacy] can be
invoked only to aid the interpretation of a will where the intention of the
testator is conveyed in uncertain and ambiguous terms . . . ."); In re Estate
of Holbrook, 166 A.3d 595, 598 (Vt. 2017) ("[W]here both the will and the
surrounding circumstances are ambiguous... the presumption against
intestacy . . . requires that the court construe the will as absolute." (internal
quotation marks omitted)); In re Estale of Hillman, 363 N.W.2d 588, 590
(Wis. Ct. App. 1985) ("The presumption against intestacy does not apply to
the construction of this will because the will is not ambiguous.").
' 5See also In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn. Ct. App.
1992) ("A will is ambiguous if, on its face, it suggests more than one
interpretation."); In re Estate of Grengs, 864 N.W.2d 424, 430 (N.D. 2015)
("A will is ambiguous if, after giving effect to each word and phrase, its
language is susceptible to more than one reasonable interpretation."
(quoting In re Estate of Eggl, 783 N.W.2d 36, 40 (N.D. 2010))); Knopf v. Gray,
545 S.W.3d 542, 545 (Tex. 2018) ("A will is ambiguous when it is subject to
more than one reasonable interpretation or its meaning is simply
uncertain.") (per curiam); In re Estate of Stanton, 114 P.3d 1246, 1249 (Wy.
2005) ("A will is ambiguous if it is obscure in its meaning, because of
indefiniteness of expression, or because a double meaning is present.").
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ti), 19.17IS •
the entire clause preceding it or to only the words immediately preceding it.
Because the words of the will can be given more than one meaning,
Marilyn's intent is unclear and the will is therefore ambiguous. See id.Accordingly, we turn to rules of construction to interpret Marilyn's will to
reflect her intent.
"[T]he interpretation of a will is typically subject to our plenary
review." In re Estate of Melton, 128 Nev. 34, 43, 272 P.3d 668, 673 (2012).
"The primary presumption when interpreting or construing a will is that
against total or partial intestacy." In re Foster's Estate, 82 Nev. 97, 100, 411
P.2d 482, 483 (1966).16 This presumption against intestacy is particularly
strong where a will contains a residuary clause. Shriner's Hosp. for
Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980) ("Where
the will contains a residuary clause, the presumption against intestacy is
especially strong.").17 The guideline for interpreting a will is the intention
16 See also Tsirikos v. Hatton, 61 Nev. 78, 84, 116 P.2d 189, 192 (1941)
("[W]here the language employed in a will reasonably admits of a
construction favorable to testacy, such construction should obtain."); In re
Farelly's Estate, 4 P.2d 948, 951 (Cal. 1931) ("Of two modes of interpreting
a will, that is preferred which will prevent a total intestacy. The same rule
has been applied to partial intestacy." (internal quotation marks omitted)).
17 See also Cahill v. Michael, 45 N.E.2d 657, 662 (Ill. 1942) ("The
presumption against intestacy is strong where there is a residuary clause.");
Medcalf v. Whitely's Adm'x, 160 S.W.2d 348, 349 (Ky. 1942) ("[T]he
presumption against intestacy...is particularly strong where the
residuary is disposed of . . . ."); In re Glavkee's Estate, 34 N.W.2d 300, 307
(N.D. 1948) ("The presumption against an intestacy is especially strong
where the testator has attempted to insert a general residuary clause in the
will."); Edwards v. Martin, 169 A. 751, 752 (R.I. 1934) ("There is also the
presumption against intestacy, here particularly strong since the residuary
clause is the subject of consideration.").
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of the testatrix, determined by the meaning of her words. In re Foster's
Estate, 82 Nev. at 100, 411 P.2d at 484.
Here, the district court did not err in interpreting the will to
apply to the entire estate. First, Marilyn designated Hisgen as "universal
heir of all her goods, rights, and actions in Portugal." Universal succession
under Roman or civil law referred to the totality of one's estate. See
Succession, Black's Law Dictionary (11th ed. 2019) (defining "universal
succession" as "[sluccession to an entire estate of another at death"); George
A. Pelletier Jr. & Michael Roy Sonnenreich, A Comparative Analysis of Civil
Law Succession, 11 Vill. L. Rev. 323, 324-26 (1966) (tracing the concept of
universal succession—meaning "succession by an individual to the entirety
of the estate, which includes all the rights and duties of the decedent"—
back to its roots in Roman law). Accordingly, Marilyn's use of the term
"universal heir" indicates her intent that Hisgen inherit her entire estate.
While this is contradicted by the modifier "in Portugal," the presumption
against intestacy overrides the modifier and ensures that Hisgen inherits
her entire estate. This means that the modifier only applies to "actions" or
"rights and shares." See Tsirikos v. Hatton, 61 Nev. 78, 84, 116 P.2d 189,
192 (1941) (concluding where the language in a will reasonably allows a
construction favorable to testacy, that construction should be used). Thus,
we give effect to both "universal heir" and "in Portugal" and use the
meaning of the words utilized by Sweet to determine her intent. See In re
Foster:s Estate, 82 Nev. at 100, 411 P.2d at 484.
Second, the modifier "in Portugal" is not included in the
residuary clause, which instead simply states that Marilyn's daughters
"[would] be her heirs" should Hisgen have predeceased her. As noted above,
the inclusion of a general residuary clause strengthens the presumption
against intestacy. Therefore, interpreting the will to apply to the entire
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estate gives meaning to the use of the words "universal heir" and the
omission of any modifier in the residuary clause. See In re Foster's Estate,
82 Nev. at 100, 411 P.2d at 484. This interpretation is also consistent with
the presumption against intestacy, see id. at 100, 411 P.2d at 483, which in
this case—because the only asset in the estate is located in Nevada—would
result in total intestacy. Accordingly, the district court did not err in ruling
that the will devised property outside of Portugal because the language of
the will indicates that Marilyn intended to devise her entire estate and
there is a strong presumption against intestacy.
Sweet was not entitled to a will contest
Finally, Sweet argues the district court erred by not holding a
will contest as to the validity of the will. She argues the mandatory
language of NRS 137.020(2)18 required a will contest. Hisgen counters that
Sweet never requested a will contest during the proceedings below and has
therefore waived this argument on appeal. He further argues that NRS
137.010(1) required Sweet to issue citations (notices) before either the
probate commissioner or the district court could have ordered a will contest.
Her failure to do so, according to Hisgen, deprived the district court of
jurisdiction to hold a will contest.
18NRS 137.020(2) states as follows:
An issue of fact involving the competency of the
decedent to make a will, the freedom of the
decedent at the time of the execution of the will
from duress, menace, fraud or undue influence, the
due execution and attestation of the will, or any
other question substantially affecting the validity
of the will, must be tried by the court unless one of
the parties demands a jury.
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H
Here, Sweet was not entitled to a will contest during the
proceedings below. As a preliminary matter, Sweet did not argue below
that she was entitled to a will contest despite possibly initiating the process
by filing her written objection prior to the hearing on Hisgen's petition to
probate the will. See NRS 137.010(1) (stating who may contest a will and
how to initiate the process). Therefore, this argument could be considered
waived on appeal. See Old Aztec Mine, 97 Nev. at 52, 623 P.2d at 983.
Regardless, she concedes that she did not "technically compl [y]" with NRS
137.010(1), which requires, in addition to filing a written objection, personal
notice of a will contest to be given by citation to a decedent's heirs and all
interested persons. "[Flailing to issue citations in a will contest deprives
the [district] court of personal jurisdiction over the parties denied process."
In re Estate of Black, 132 Nev. 73, 78, 367 P.3d 416, 419 (2016).19
Accordingly, here, Sweet's failure to issue any citation for a will contest
deprived the district court of jurisdiction over such a contest, and the
district court therefbre did not err in not holding a will contest.
CONCL USION
The international scope of the UIWA requires the court to look
to the laws of the foreign state where the will was executed to determine
the proper identity of an "authorized person." Further, NRS 133A.050(2)
and NRS 133.080(1) are clear and unambiguous in allowing a will that fails
1 "We note that this requirement is analogous to the demand
requirement found in NRS 13.050(1)(a) (providing even if venue is not
proper, the proceeding may be held in the improper county unless the
defendant demands in writing that the trial be held in the proper county).
A motion is not a substitute for a demand. See New Transit Co. u. Harris
Bros. Lumber Co., 80 Nev. 465, 468-69, 398 P.2d 133, 134 (1964) (explaining
that a motion for a change of venue does not meet the requirement that a
written demand for a change of venue be filed).
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1,11 P..4711 ,:-4,710,51"..0
to comply with the UIWA to be probated in Nevada, even if it was executed
in a foreign country, so long as it complies with NRS Chapter 133. Also, the
district court did not err in applying the will to the entire estate. Finally,
Sweet was not entitled to a will contest during the proceedings below
because she did not comply with NRS 137.010(1). Accordingly, we affirm
the district court's order.
, C• J•
Gibbons
We concur:
Bulia
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