New Mexico Attested Will Lawyer

An attested will refers to a will that is witnessed and signed by all parties. In New Mexico, attestation (the act of attesting) is required by at least two individuals for the will to be considered properly executed.

New Mexico statutes do not define the word “attest,” “attested” or attestation, but it is used in the statutes to mean the act of witnessing on the document itself that the will was signed by the “testator” (the person making the will) in the presence of the witnesses.  For instance, New Mexico statute § 45-3-305(B) provides that “the affidavit or testimony of at least one of the attesting witnesses” may be required if the witness is available.

By the same token, a will that is not attested cannot be entered into probate in the state of New Mexico, potentially making the decedent’s estate intestate unless an earlier and valid will can be located.

Proper witnessing and execution of the will is, therefore, essential for your wishes to be honored by the probate court. Otherwise, your property will go entirely to your surviving spouse, or it will be split evenly amongst your children or other next of kin.

Working with a New Mexico attested or self-proved will lawyer can ensure that your last will and testament are capable of producing the outcomes you want after your passing. To learn more, schedule a no-obligation consultation and estate plan review with New Mexico Financial & Family Law today when you call 505-503-1637 or contact us online.

How a New Mexico Attested or Self-Proved Will Attorney Helps You Perform Due Diligence

The rules for a valid, attested will in New Mexico (per NM Stat § 45-2-502) are fairly straightforward:

• The testator (creator of the will) must be 18 or older and have the capacity to understand the will and its effects on the estate.
• The will must be “written,” meaning it is a physical printed, typed, or handwritten copy — New Mexico does not recognize oral wills, video wills, or non-printed electronic wills.
• The testator must sign the will or direct someone to sign it in their presence.
• The singing of the will must be witnessed by at least two other parties, who then sign the will in each other’s presence and in the presence of the testator — this is the part that is referred to as “attesting” the will.

While all of these rules sound simple, there are a number of precautions testators are encouraged to take to reduce the risk that the will is challenged during probate.

One of the most important precautions the testator can follow is to include an attestation clause in their will. These clauses clearly identify the witnesses of the will and affirm that they signed the will in the presence of the testator and each other.

Like the word “attestation” the statutes do not define “attestation clause,” but the meaning is clear that an attestation clause is what enables a will to be a “self-proved will” under New Mexico statute § 45-2-504.

The statutory attestation clause, of the testator, which is necessary to make a will self-proved is as follows:

“I, ________, the testator, swear or affirm under penalty of perjury on this _______ day of ________, that I request ________ and ________ to act as witnesses to my will; that I declare to them and the undersigned authority that this document is my will; that I sign this will in the presence of both witnesses; that they sign the will as witnesses in my presence and in the presence of each other; that the will was read by me (or read and explained to me) after being prepared and before I sign it; that it clearly and accurately expresses my wishes; that I sign it willingly (or willingly directed another to sign for me); that I make and sign the will as my free and voluntary act for the purposes expressed in the will; that I am eighteen years of age or older; that I am mentally capable of disposing of my estate by will; and that I am not acting under duress, menace, fraud or undue influence of any person.”

The witness also have their own statutory attestation clause:

“We, __________ and __________, the witnesses, do hereby swear or affirm under penalty of perjury on this ___________ day of ___________________ to the undersigned authority that the testator, __________________, declares that the attached document is his or her will; that the testator signs it willingly (or willingly directs another to sign for him or her); that the testator signs it in the presence of both of us and requests both of us to sign as witnesses; that each of us, in the presence of the testator and in the presence of each other, signs this will as witness to the testator’s signing; that so far as we can determine, the testator is eighteen years of age or older; that the testator is not acting under duress, menace, fraud or undue influence of any person; and that the testator, in our opinion, is mentally capable of disposing of his or her estate by will.”

A self-proving will is automatically admitted into probate without any further proof or testimony, unless the will is challenged.

All of these additional steps — an attestation clause and notarization — are not required for a will to be considered valid in New Mexico, but they can smooth the process of probating the will and reduce the risk of challenges to the will’s validity.

Who Is Allowed to Witness an Attested Will in New Mexico?

New Mexico law only provides that a will must be witnessed and signed by “at least two individuals” (NM Stat §45-2-502). This description is, admittedly, vague, but it contains a few assumptions:

• The witnesses must be age 18 or older.
• The witnesses must have the capacity to understand that they are signing a will (they do not need to read the will) and that their attestation verifies that the testator signed the will.
• The witnesses observed that the testator is of sound mind and capable of understanding the contents of their will and that they signed it of their own volition, free from duress or any noticeable undue influence.
• The witnesses are expected to make themselves available for contact in the event that the will’s authenticity needs to be proven.

What if One or Both of the Witnesses Dies or Cannot Be Contacted During Probate?

If a witness cannot be contacted because of death or an unknown status, then the will may still be considered properly attested. The personal representative of the estate can use other means to prove the authenticity and validity of the will instead.

However, challenges may be raised as to the validity of the will’s execution if witnesses cannot be contacted.

Because of this risk, it is always advisable to work with a New Mexico attested will lawyer to ensure the validity and enforceability of the will. An attestation clause can also be extremely beneficial in this situation, and a notarized self-proving will avoids the situation entirely since witnesses do not need to be contacted.

Do the Witnesses Have to Know the Testator for an Attested Will to Be Valid?

No. Familiarity with the testator is not a requirement for proper attestation and execution of the will.

However, if one or both of the witnesses cannot be contacted because they are not known by any of the family or other interested parties, then it may be possible that the will’s validity could be challenged during probate.

Again, an attestation clause and a notarized self-proving will can be beneficial in such a situation.

Do the Witnesses Have to Be a Non-Interested Party?

No. Unlike many other states, New Mexico does not require that a witness be an uninterested party.

For reference, an “interested party” refers to any party that is a beneficiary, a creditor, an immediate family member, or another individual affected by the will’s outcome.

It is prudent, however, for the testator to try and find a non-interested party who is still acquainted with them to serve as their witness for an attested will. Someone with an interest in the will’s effects could feel encouraged to exert undue influence, coerce the testator, or mislead them by way of fraud or misrepresentation.

Using a non-interested party, instead, reduces the risk that the will could be scrutinized. Similarly, even though an attorney or notary can legally serve as a witness to an attested will, doing so may not be the most prudent choice.

Can an Attested Will Be Amended or Added To?

Any changes to the will must be properly executed in the same manner as the original will. More specifically, the modified will must be signed by the testator in the presence of two witnesses, who then sign the new will in one another’s presence.

It is important to note that under no circumstances should the testator of a will put hand-written markings on the will to indicate desired changes.  Under NMSA § 45-2-507(A)(3), marking out any provision of a valid will, by the testator, could be construed as a “revocatory act” completely invalidating the will.  If this happens, the testator could be left with no will at all, rather than the imperfect one he wants to change.

The new will is presumed to supersede an older one, but it is prudent to include a clause revoking the older will’s contents. Even without a revocation clause, the newer will always takes precedence over the old one.

A testator can also choose to create a document called a codicil that amends or adds to the most recent will. Again, this codicil must be properly executed in the manner of an attested will, including the requirement for two witnesses to sign it.

The two witnesses do not have to remain consistent every time a will is updated or a codicil is created. There merely needs to be two valid witnesses any time the will is executed.

What Happens if There Is a Non-Attested Will?

Attestation is required for a will to be entered into probate. Any will that is not properly executed is going to be declared invalid, including oral wills and holographic wills.

If a will cannot be used during probate, then the most recent valid will assumes precedence.

If no valid will exists — either because one cannot be located or they have been destroyed by a revocatory action (see NM Stat § 45-2-507) —  then the estate is declared intestate.

What Happens if an Estate Becomes Intestate?

An “intestate” estate refers to an estate that is not disposed of through a valid last will and testament.

In New Mexico, intestate succession laws dictate that the estate will be disposed of in the following manner:

• If there is a surviving spouse but no surviving children, then the entirety of the estate goes to the spouse.
• If there is a surviving spouse and surviving children, then the spouse inherits 100% of the community property and one-fourth of the separate property, with the remaining three-fourths of the separate property split evenly among the children.
• If there are surviving children but no surviving spouse, then the estate is split up evenly among the children.
• If there is no surviving spouse nor any surviving children, then parents or siblings or other next-of-kin may inherit the entirety of the estate.

Common Ways an Attested Will Can Be Challenged During Probate

Even a properly attested will can be challenged under the following conditions:

• Lack of testamentary capacity — The testator lacked the mental awareness or other faculties needed to fully understand the contents of the will and that they were signing the will.
• Lack of attestation capacity — In New Mexico, there is a presumption of capacity on the part of the witnesses, but their capacity is not explicitly required by state law. However, someone may be able to contest the will if they can prove that the witness did not know they were attesting to the will’s validity or the testator’s capacity.
• Coercion — If either the testator or their witnesses were coerced into executing the will, then it may be declared invalid.
• Undue influence — Undue influence can be exerted on a testator (even one with capacity) when someone close to them convinces them to go against what would otherwise have been their wishes. Common examples of individuals who may exert undue influence include caretakers, accountants, doctors, advisors, creditors, distant relatives, and other people close to the testator towards the end of their life. Because of the risk of an interested party alleging that undue influence occurred, it is advisable to have the witnesses who attest to the will’s validity be non-interested parties.
• Fraud and misrepresentation — If the testator created the will based on false information or other forms of deceit, then it may be declared invalid.

To reduce the risk that the will is challenged, testators sometimes undergo a mental evaluation and take other steps to remove suspicion for undue influence, coercion, or fraud. In these cases, a medical professional who is capable of assessing the testator’s condition may sign a separate clause in front of witnesses affirming the testator’s mental capacity.

What Are the Steps Required to Create an Attested Will in New Mexico?

To ensure that a will satisfies all of the wishes of the testator and is capable of being carried out after probate concludes, the testator may want to perform all of the following:

• Thoroughly review the contents of your estate — Take an inventory of all accounts, real property, and other possessions that make up your estate. Make sure to perform a thorough review of all property that is technically in your possession, including any accounts you may have forgotten about
• Determine beneficiaries — Decide who will inherit what. Note that there is a presumption that children will inherit the bulk of your estate in nearly equal shares. If you don’t want certain children to have as much or wish to entirely disinherit someone, it is prudent to include a disinheritance clause explaining your reasons.
• Draft a will — You can use resources available to create your own will or have a New Mexico attested will attorney draft one for you. Make sure there is a clear date on all pages and that the pages are properly numbered. Have a lawyer review your will to ensure that it is valid, that it entirely disposes of your estate, and that it accurately reflects your wishes for the world you want to leave behind when you pass.
• Execute your will — Find two (ideally non-interested) parties to witness you signing the will, then have them sign the will in front of each other and in your presence. You may also want to have the will notarized at this point to make it self-proving.

Get Help From a New Mexico Attested Will Law Firm

New Mexico Financial & Family Law is ready to assist you at all stages during the creation of your will. We can help you revoke earlier wills and take other steps to avoid confusion, conflict, or contesting of the attested will during probate.

Get in touch with a New Mexico attested will attorney to leave behind a legacy you can be proud of when you call us at 505-503-1637 or contact us online.