Wills

Valid or Not?

Who May Make a Will? anyone 18 or older and of sound mind (Section 45-2-501).

What is Sound Mind? Testamentary capacity (being of sound mind) means you know:

• The objects of your bounty (who your immediate heirs are);
• The nature of your bounty (what property you own); and
• That you are making a will.

A lucid moment is all that New Mexico case law requires—if, at the moment you signed the will, you know the above three things, then you meet the requirements of testamentary capacity, even if you do not remember making the will the next day. Also, someone under a court-appointed conservatorship may still have capacity to make a will! See Matter of the Estate of Lucero, 118 N.M. 636 (Ct. App. 1994).

Witness Requirements:

• two “competent” individuals, Section 45-2-505(A);
• no age requirement, although in practice attorneys who prepare wills use witnesses age 18 or older; But see Matter of the Estate of Kelly, 99 N.M. 482 (Ct. App. 1983), where a 13-year-old witnessed a will, and this was not part of the challenge to the will;
• interested persons (those who inherit under the will) may serve as witnesses, Section 45-2-505(B).

Will Requirements (Section 45-2-502):

• In writing;
• Signed by testator (or another directed by testator to sign on testator’s behalf in testator’s presence);
• Signed by two witnesses (testator and two witnesses, who must all be in each other’s presence and watch each other sign)

Notarization is not required! But wills prepared by lawyers are often notarized.

Note: Wills that are not signed in the presence of two witnesses (or are not witnessed at all) are invalid if created in New Mexico. However, New Mexico has a case that says if a will only has one witness’s signature, but is notarized, then the notary counts as the second witness, and the will is valid. Martinez v. Martinez, 99 N.M. 809 (Ct. App. 1983).

Practical Tip
Most wills contain an attestation clause, language that says the testator and witnesses were all in each other’s presence and watched each other sign, which makes the probate judge’s job easier. A will that appears to have the required signatures and which contains a proper attestation clause is admitted to probate without further proof (Section 45-3-303(C), NMSA 1978).

If further proof of the validity of the will is necessary, the judge has two options:

• The court can presume execution if the will appears to have properly executed; or
• The court may accept a sworn statement or affidavit of any person who knows the circumstances of execution, whether or not the person was a witness to a will (Section 45-3-303(C)).

Other Kinds of Wills

Holographic Wills: wills in the handwriting of the testator and signed by the testator, but without proper signatures of witnesses. New Mexico does not recognize holographic wills made in this state! However, if a holographic will was validly made in a state that recognizes them, and the testator then moved here and died, you could possibly admit that will. Legal research about the other state’s law on holographic wills would be necessary.

Joint Wills: one original will for two people. Not favored in modern times. If the one joint will needed to be probated at the death of the first spouse, you would probably use an authenticated copy of the original will if a second probate were needed.

Mutual Wills: two almost identical wills for two people, usually spouses. Also known as “I love you wills” or “mirror wills.” Mutual wills leave property to each other, then to identical successor devisees.

Wills with a Contract Not to Revoke: Sometimes joint or mutual wills contain language that the wills cannot be revoked once the first person dies. Such a contract requires additional writings making the testator’s intent clear. See Section 45-2-514.

A New Mexico case, In the Matter of the Estate of Kerr, 121 N.M. 854 (Ct. App. 1996), discusses joint and mutual wills and contracts not to revoke.

Pourover Wills: wills executed as part of a trust. The residuary clause of a pourover will leaves the decedent’s assets to “the Trustee of the X Revocable Living Trust dated ____________,” instead of to individuals. Although only the district court has jurisdiction over trusts, including trust administration or conflicts, the probate court may admit a pourover will when no dispute exists.

The judge’s job in reviewing a will is important. The judge should carefully inspect the will and consider:

• Is the will original? Are all pages original?
• Are the signatures original?
• If notarized, is the notary seal or stamp original?
• Are all pages present and accounted for?
• Are there any signs of possible revocation, such as scratched out words, burn marks, etc.? If there is some question about whether the will has been revoked, the case should be filed in district court. Sometimes there are changes to the will (such as scratched out or changed words or names that are initialed by the testator). Unless these changes were signed in the same manner as a will, they are not valid amendments, but could be valid revocations. Invalid amendments do not necessarily affect the validity of the rest of the will unless someone challenges the will. If a will is challenged after you admit it, you will need to transfer the case to district court.
• Is the personal representative first named in the will the same one who is asking to be appointed? If not, is the successor personal representative named in the will applying and have they stated why the first choice cannot serve? If not deceased, has the first personal representative completed a proper renunciation and concurrence or consent?
• Do the names in the family history section of the will (listing spouse and children), if any, match the spouse and children’s names listed in the Application?
• Are all devisees listed in the will also listed in the Application, including trustees, schools and charities?
• Does the date the will was signed match the date of the will in the Application?

Practical Tip
Wills do not expire, so old wills that have not been revoked and are properly executed should be admitted. New Mexico also accepts out-of-state wills that comply with our execution requirements OR complied with their own state’s requirements at the time they were executed, see Section 45-2-506. Legal research about the other state’s law on will executions might be necessary. Finally, there is no requirement that wills be typed. Handwritten wills are acceptable if they were properly signed and witnessed.

Tangible Personal Property List
As part of a will, a testator may prepare a list of tangible personal property (such as furniture, jewelry, guns, boats, cars, artwork, personal effects, etc.) and the recipients of each item. Money may not be put on this list. This list must be signed by the testator, but does not need to be signed by witnesses. This list becomes part of the will and can be admitted to probate by the probate judge. Section 45-2-513 contains the requirements of this list. A New Mexico case, In the Matter of the Estate of Russell, 119 N.M. 43 (Ct. App. 1994) interprets this statute.