New Mexico Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – New Mexico

Note:    This summary is not intended to be an all inclusive discussion of the law of wills in New Mexico, but does provide basic and other information.  This summary does not discuss hand written wills.

Who may make a will: An individual eighteen or more years of age who is of sound mind may make a will. 45-2-501.

Execution: A will must be in writing, signed by the testator and signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will. 45-2-502.

Witnesses: An individual generally competent to be a witness may act as a witness to a will. The signing of a will by an interested witness does not invalidate the will or any provision of it. 45-2-505.

Self-Proved Will: A will may be simultaneously executed, attested and made self-proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer’s certificate, under official seal. The will you have located contains the required form for New Mexico. 45-5-504

Foreign (other state) Choice of Law: A written will is valid if executed in compliance with New Mexico law, or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled or is a national.45-2-506.

Revocation:

  1. A will or any part thereof is revoked:
    (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
    (2) by performing a revocatory act on the will if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a “revocatory act on the will”, whether or not the burn, tear or cancellation touched any of the words on the will.
  2. B If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.C. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.

    D. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent that the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent that the wills are not inconsistent. 45-2-507.

Separate Written Instrument – Personal Property: A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be:
A. referred to as one to be in existence at the time of the testator’s death;
B. prepared before or after the execution of the will;
C. altered by the testator after its preparation; or
D. a writing that has no significance apart from its effect on the dispositions made by the will. 45-2-513.

Contract to Make a Will:
A. A contract to make a will or devise or not to revoke a will or devise or to die intestate, if executed after the effective date of this article, may be established only by:

(1) provisions of a will stating material provisions of the contract;
(2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) a writing signed by the decedent evidencing the contract.

B. The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills. 45-2-514.

Deposit of Will: A will may be deposited by the testator or his agent with the clerk of any district court in New Mexico for safekeeping pursuant to rules of that court. The will shall be kept confidential. During the testator’s lifetime, a deposited will shall be delivered only to him or to a person authorized in writing signed by him to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under district court procedures designed to maintain the confidential character of the document to the extent possible and to assure that it will be resealed and left on deposit after the examination. Upon being informed of the testator’s death, the district court clerk shall notify any person designated to receive the will and deliver it to him on request, or the court clerk may deliver the will to the appropriate court. 45-2-515.


Inside New Mexico Last Will and Testament Law