New Mexico Nuncupative Will Lawyer

A nuncupative will is a special type of will that is spoken orally in front of one or more witnesses, usually while the will creator (testator) is facing imminent death.

New Mexico, along with most other states, does not recognize nuncupative wills as a legitimate form of last will and testament. In states that do recognize these types of wills, they are usually only allowed under special circumstances, such as if the testator is serving actively in the Armed Forces on a combat mission.

Although unlikely, it is possible that a nuncupative will that was made in a foreign country or if any other state recognized it could be recognized in New Mexico.

All wills in New Mexico must be properly witnessed, attested, and executed in order to be admitted into probate. New Mexico does recognize foreign wills in some cases, but individuals trying to submit an out-of-jurisdiction will into probate may face many challenges if the will was not fully written out, signed, and witnessed.

Reach out to a New Mexico nuncupative will lawyer to get more information and recommendations on what to do if you are a personal representative of an estate. New Mexico Financial & Family Law can also provide guidance on creating or revising a will if you are a testator looking to solidify your estate plans.

Call 505-503-1637 or contact us online to schedule a no-obligation case review with one of our New Mexico nuncupative will attorneys today.

When to Contact a New Mexico Nuncupative Will Attorney

You can contact a New Mexico nuncupative will attorney for any reasons related to will creation, estate planning, or probate.

However, the most likely reasons to schedule an appointment with a nuncupative will lawyer in New Mexico are:

• You are a personal representative (i.e., executor) of an estate where the testator created or attempted to create a nuncupative will.
• You are a beneficiary to some part (or the entirety) of an estate that involves a nuncupative will.
• You are an interested party connected to an estate where a nuncupative will was issued.
• You are someone who is interested in will creation and want to know more about nuncupative wills as an option.

New Mexico Financial & Family Law is prepared to assist you no matter which of these camps you fall into — or even if none apply. Our extensive experience as probate and estate planning attorneys provides us with the knowledge and perspective needed to provide guidance in a wide range of case scenarios.

If you are involved with an estate that is attempting to use a nuncupative will during probate, we have provided more information about nuncupative wills that should clarify your likely options below.

If you have not created a will yet and are interested in the idea of a nuncupative will, know that you are going to be better served by creating a written will in New Mexico, which allows it to be recognized and admitted into probate.

Read on to learn more about these unique types of wills, and do not hesitate to contact our New Mexico nuncupative will law firm if you still have questions or want professional guidance.

What Is a Nuncupative Will?

A nuncupative will is one that was declared aloud by the testator, usually right before their death.

The word “nuncupative” derives from the Latin words “nūncupātīvus,” which means “so-called,” and “nūncupātus,” which is the past participle of “to name.” The word’s usage in English more loosely means “to declare,” and it almost exclusively applies to a particular type of will that is verbally issued by the testator in front of multiple witnesses.

Oral wills fell out of fashion during the Ancient Roman period as more individuals gained access to written records.

England’s Statute of Frauds introduced the concept of nuncupative wills into Western common law. The statute allowed for spoken wills only if they were issued from the testator’s place of residence or issued from outside their home if they were “surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling.”

Any witnesses were required to write down the will in its entirety within six days of it being issued, and they had to attest to the accuracy and veracity of their recording.

Another type of nuncupative will recognized in England and in some U.S. states, under special circumstances, are those issued by military members who are wounded or otherwise face life-threatening situations. Per the United Kingdom’s Soldiers and Sailors Act 1918, these individuals could verbally declare their last will and testament if they faced “imminent danger” and had a witness available to account for their wishes.

In any form, most nuncupative wills are bound by four requirements:

• The testator must clearly state their intention to make a will (as opposed to making a generalized or hypothetical statement about who they would give their property to).
• The nuncupative will cannot override any statements issued in a valid, written will that had been executed by the testator at any point in the past.
• A nuncupative will is no longer considered valid if the testator survives their life-threatening situation for a period of several days.
• Only personal property can be transferred by a nuncupative will, not real property.

Nuncupative Wills in the United States

Washington D.C. and the following U.S. states recognize nuncupative wills in some form:

• New York
• North Carolina
• Ohio
• Indiana
• Missouri
• Tennessee
• New Hampshire

New York, D.C., and New Hampshire all require the testator of a nuncupative will to be actively serving in the Armed Forces. Statutory provisions may also require that the testator is serving in a war (regardless of whether a formal declaration of war was issued) or aboard a vessel at sea.

North Carolina, Ohio, Indiana, Missouri, and Tennessee allow for any testator to issue a nuncupative will, even if they are not serving in the U.S. Armed Forces. However, they have to be facing an “imminent peril of death” and die from the expected peril.

Otherwise, the nuncupative will is defunct after a short period has passed.

Ohio requires that the nuncupative will is heard by two witnesses, who must record the statements made by the testator within 10 days.

Nuncupative Wills in New Mexico

As stated before, New Mexico does not recognize nuncupative wills in any form when they are created in the state.

However, if the nuncupative will was drafted in another state, country, or territory that recognizes them as valid, and the testator complied fully with all statutory requirements, then the will can potentially be entered into probate using New Mexico’s foreign wills provision.

New Mexico Law (NM Stat § 45-2,506) provides that a “written” will can be admitted to probate if the will was “executed” under the laws of that state. It is an open question what would happen if an oral will, valid in another state, were attempted to be recognized by a New Mexico court.

In other words, if someone creates a nuncupative will in another state, the will could possibly proceed in a New Mexico probate court.

At the same time, know that any will — foreign or not — could be subject to challenges to its validity, authenticity, or enforceability by any interested party.

Possible Challenges That Could Affect a Nuncupative Will in New Mexico

Any interested party could contest a will that is entered into probate in New Mexico. Interested parties include creditors of the testator, beneficiaries, close family members, and other parties who might be affected by the outcome of enacting the will as admitted into probate.

Possible challenges to a will’s validity can include:

• Fraud — The will is not genuine, or it does not genuinely reflect the intentions of the testator at the time they issued their nuncupative will statement. This form of contest can also mean that the testator was defrauded, such as if someone lied about the value of property they owned to get them to make a specific decision on who inherits it.
• Lack of Testamentary Intent — The testator did not mean for their statements to be taken as a serious and formal issuance of their last will and testament.
• Improper Execution — For most states and countries, a nuncupative will is only accepted under limited circumstances. A challenger for an Ohio will could, for example, seek to prove that the will was not properly witnessed or recorded by a witness in the allotted time period, according to Ohio law. Alternatively, if the will was created in another state, the challenger could dispute whether the testator faced a genuine “imminent peril” or if they were legitimately serving as an active duty Armed Forces service member.
• Lack of Testamentary Capacity — To issue a will, the testator has to have “capacity,” meaning that they have the mental awareness to know that they are creating a will and how the will is going to affect their estate. Since many nuncupative wills are issued while the testator is in an advanced state of a disease or in a high-pressure life-or-death situation, a challenger could argue that they were not in a state of mind where they were capable of making a will that genuinely reflected their wishes.
• Unenforceability — Provisions of the nuncupative will (or the entirety of the will) could be considered unenforceable if they go against the laws of the state where the will was issued. For example, in a state that only allows nuncupative wills to transfer personal property, a nuncupative will that tries to transfer real estate could be deemed unenforceable.
• Undue Influence — If someone convinced or compelled the testator to give them an unreasonably large share of the estate, the entire will could be declared invalid because of their excessive influence.
• Misrepresentation — If someone purporting to be a witness to the nuncupative will declaration was not actually present at the time the testator supposedly made their will statement, then they are misrepresenting themselves, and the entire will may be considered fraudulent.
• Superseded by Another Will — As mentioned above, any previously executed written will takes the place of a nuncupative will, no matter how much time has passed since the written will was originally executed. A nuncupative will may, however, distribute parts of the estate not covered by the original written will.

How Can I Make a Will That Is Considered Valid in New Mexico?

For a will to be recognized in New Mexico (barring any admissible foreign wills), it must comply with the following statutory requirements (per NM Stat § 45-2-502):

• The will must be in writing, referring to a physical copy that is either printed/typed out or handwritten.
• The will must be signed by the testator or signed at the express direction of the testator in their direct, physical presence.
• The signing of the will by the testator (or an agent under their direction) must be witnessed by at least two individuals, who will then sign the document in the presence of the testator and one another.

These statutory provisions also presume that the testator and their witnesses are legal adults and have capacity, meaning they are able to understand that a will is being created, according to New Mexico law.

What If Someone Wants to Make a Nuncupative Will in a Hurry in New Mexico?

Even though time can feel precious to those who are facing a likely death, they should be encouraged to take the time to create a proper, written will so that their wishes can be enforced as they intended.

A person facing barriers to writing their own will can dictate the provisions of their will to another party. And, per New Mexico’s statutes, they can have another party sign the will in their presence.

The testator can accompany their written will with oral statements, explaining their wishes further or elaborating on any important instructions or thoughts they have at the time.

These oral statements “can make decisions about end-of-life care or the person’s estate simpler, and can reduce the number of disputes over the estate and over end-of-life arrangements by heirs and other representatives,” according to financial and consumer journalist Julia Kagan.

The statements made by a testator can potentially even be admitted into court to provide further evidence of their intentions and reasonings. For example, if a child of the testator wants to dispute that they should have inherited the family home, a statement made by the testator explaining why the home went to another party could allow for the challenge to be easily dismissed.

Keep in mind, though, that oral statements can be difficult to admit into court, so written accounts and the availability of witnesses are critical for these statements to be verified.

Work With an Experienced New Mexico Nuncupative Will Law Firm

New Mexico Financial & Family Law has helped countless individuals and families with some of their most important life matters. From will creation and estate planning to handling probate, we provide a wide range of services to honor the legacy of individuals who want to see their loved ones well taken care of after they are gone.

Learn more about wills and probate by scheduling an appointment with our New Mexico nuncupative will law firm when you call 505-503-1637 or contact us online.