New Mexico allows for a fairly flexible definition of “last will and testament.” Any adult individual can create a document discussing how their estate will be handled following their death, provided it is signed in front of two witnesses who sign their names. The will must be a physical document, meaning it has to be printed out and dated.
While these requirements for a valid will may seem relaxed, the truth is that individuals should take great care when creating a will in New Mexico, nevertheless. The ultimate goal is to ensure that the will is clearly written, its terms are enforceable, and it does not compete with another document or will. It must also have been written with the full knowledge and capacity of the testator (the person writing the will) without any undue influence exerted on them. Meeting all of these requirements can help the will’s creator anticipate why the will might be contested or otherwise not carried out as intended.
To create a will or verify your current one’s validity, it is best to work with an experienced estate planning lawyer in New Mexico. Individuals can even avoid formal probate and make the process of following their final wishes through a comprehensive estate plan that includes a trust or other similar arrangements. You can also refer to a New Mexico probate lawyer if you or your family are struggling with carrying out a will as intended or object to a presumed will because of a contest or another issue.
In order for a will to be considered legal, it must be made by someone who is able to write a will, and it must be a valid document according to the state’s legal requirements.
In order to create a will in New Mexico, you must be at least 18 years of age or an emancipated minor (NM Stat § 45-2-501). You must also be of sound mind, meaning you have the legal capacity to make a clear, conscious decision.
In order for a will to be valid, it must be a physical paper copy. Digital files, as well as video or audio recordings, are not considered valid. The document should be clearly dated on the front so as to avoid confusion with any other wills created that might otherwise supersede this one.
In order for a will to be finalized, it must be signed by the testator in front of two witnesses of sound mind, with the capacity to understand that they are witnessing the signing of a will. They must then sign the will themselves, in front of each other and in front of the testator (NM Stat § 45-2-502).
Under New Mexico law, a person can be a witness to a will even if they are named as an heir in the will — i.e. they are an “interested party.” However, it may be advisable to have a neutral, non-interested party witness the will to avoid alleged conflicts of interest.
In New Mexico, a will can be handwritten, but it must always be signed and witnessed, as indicated above. The state does not recognize a “holographic will” that is handwritten and unsigned. It is advisable to create any handwritten will in ink and date the document. Any mistakes or crossed-out items would ideally be accompanied by the initials of the testator.
As for electronic wills, only physical printed-out documents count as valid in New Mexico. If an individual wishes to send their will in electronic form to an attorney or relative, the document must be printed out, signed, and witnessed as indicated above before it will be considered valid.
Having a will notarized is an optional step, and it is not necessary for a will to be recognized by the probate court. However, having a will notarized can save some time and expedite the legal proceedings to carry it out.
A non-notarized will must be verified by proving that the witnesses who signed it were actually present and fully aware of what they were doing. Doing so requires their testimony or some other form of verifiable correspondence from the witness. A will that is notarized is considered “self-proving” in New Mexico, allowing the estate’s representative to skip the step of contacting the witnesses (NM Stat § 45-2-504).
When getting a will notarized, the notary will request an affidavit from the testator and any witnesses affirming their identity and acknowledging that they understood that they were witnesses to a will.
A testator can declare that a will is no longer valid at any time by performing a “revocatory act.” These include any “burning, tearing, canceling, obliterating or destroying the will or any part of it,” even if the words on the will are still partially or completely legible (NM Stat § 45-2-507). The testator can also direct someone else to perform a revocatory act in their presence.
When a new will is created, it will ideally declare any previous versions of the will invalid. An individual can also request a revision to their will by creating a document under the same terms of executing a will, as described above.
New Mexico law (NM Stat § 45-2-507) provides for situations involving two or more wills that all appear to be valid.
In cases where the new will directly contradicts language in an older will, the estate representative is supposed to follow the language of the more-recent will.
In cases where the new will does not completely dispose of the estate, meaning that the will overlooks certain parts of the estate, then the will is assumed to be adding to the terms of the previous will. Any time a new will omits part of an estate, then the most recent will that discusses that part of the estate is presumed to be valid, in part, except in cases where the new will definitively declares all previous wills invalid.
As an example, if there are two wills and both mention what will happen to a certain car, then the representative will be expected to obey the more-recent will. However, if the more-recent will fails to mention the vehicle, and the vehicle is still held within the estate, then the representative may look to the previous version of the will for instructions.
There are several reasons to contest a will in New Mexico. In order to do so, you must first be considered an “interested party.” This designation means that you contest the will on the grounds that you have a financial interest or some other legally recognized interest in the outcome of the estate.
Individuals considered to be interested parties include:
The primary grounds under which to contest a will in New Mexico include:
In most cases, the estate will then be handled according to the rules of intestate succession. In most cases, this will mean that the estate is split between the surviving spouse and any surviving children.
In cases where the person contesting a will seeks to establish that another will is more valid, in part or in full, they will have the burden of proving that the alleged superseding document should be recognized.
In order to contest a will, an interested party must file a petition challenging the will in the appropriate district court. If the grounds to contest are valid, the court will schedule a hearing for the petitioner to present their evidence and establish why they feel they have sufficient grounds to contest the will.
A “no-contest” provision in a will cannot legally prevent any contests from being filed. It can, however, state that any individual who files an unsuccessful contest is effectively disinherited and no longer to claim any aspect of the testator’s estate. These provisions are included to discourage frivolous or malicious contests.
In order for a will to be considered valid, the following two conditions must be met:
“Capacity” refers to the ability of an individual to fully understand the decisions available to them and the consequences of those decisions.
An “incapacitated person,” by contrast, has their functional abilities impaired for any number of reasons, “to the extent that the person is unable to manage the person’s personal affairs or the person is unable to manage the person’s estate or financial affairs or both.” (NM Stat § 45-5-101) Reasons someone might be incapacitated include: “mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause.”
In situations where someone’s capacity might be put into question, it may be advisable for the individual to obtain an affidavit affirming their mental capacity from a licensed physician qualified to determine their abilities. If the individual lacks capacity, they may need to appoint a representative through powers of attorney or have a guardian/conservator appointed to help them have their wishes carried out.
“Undue influence” refers to situations where an individual is able to leverage their relationship with the testator in order to obtain favorable treatment in the subsequent will. In these cases, the testator may not even realize that they are being manipulated or generally subjected to an improper power dynamic.
When considering undue influence, the district court will consider the nature of the relationship between the testator and the alleged influencer. If the testator was dependent on the influencer for medical care, financial custodianship, legal advice, or even romantic/sexual intimacy, then the court will potentially consider these factors in determining if that person used the dependency to extract favorable treatment in the will.
Undue influence is considered more applicable in unusual circumstances where an individual would not normally be closely involved with the testator (NM Stat § 45-3-404). A high level of scrutiny is expected when a person who normally performs a service role to the testator, such as a nurse, caregiver, lawyer, or accountant, begins to exert dominance.
In cases of unusual circumstance, the court may fairly assign a presumption of undue influence, requiring the estate representative to present evidence to the contrary. By comparison, individuals who would normally have a close relationship — such as a son, spouse, sibling, grandchild, etc. — are not presumed to have exerted undue influence.
Working with an estate planning lawyer can help an individual create a will more likely to be carried out as intended. They can assist in matters such as:
The attorneys at New Mexico Financial & Family Law have provided estate planning services to residents in Albuquerque, Rio Rancho, and throughout the state for over 25 years. We look carefully into the details of your estate and listen closely to your goals and wishes. We also provide probate law services to estate representatives as well as those seeking to assert their legal rights during the probate process.
Speak to one of our knowledgeable, experienced New Mexico estate planning attorneys for information and guidance on some of the most important decisions of your life. Call (505) 503-1637 or contact us online to schedule a no-obligation case review where we can discuss your plans and give answers to some of your top questions.
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