An oral will is a traditional form of will that does not require a written document (called a will instrument) to be effective. New Mexico does not allow oral wills, however. All wills in the state must be “written,” per state law.
Other states may recognize oral wills, but usually only in certain circumstances. The will creator (called a testator) typically must be facing imminent death, and they may need to be a member of the U.S. Armed Forces.
New Mexico may recognize certain oral wills under its statutes, and the full-faith-and-credit clause of the U.S. Constitution, provided that the will is valid in accordance with the state (or country) where the will was issued.
Speak to a New Mexico oral will lawyer to learn more about what is required for a valid will and whether a foreign will may be used for probate. Schedule a no-obligation case review when you call us at 505-503-1637 or contact us online.
New Mexico law (NM Stat § 45-2-502) is stricter than many states in that all wills must be:
If you are someone who intends to create a will and you reside in the state of New Mexico, know that an oral will cannot be used in the state. Your will must be written down and executed in the manner described above.
If you are a personal representative (i.e., an executor) of an estate that is supposed to be distributed according to an oral will, you can reach out to New Mexico Financial & Family Law for assistance. We can potentially help you get the will certified in the area where it was created, which may allow the estate to enter probate as intended.
If you are a beneficiary of an estate that involves an oral will and you have concerns or possible grounds to contest the will, a New Mexico oral will attorney can help. We’ll explain your rights as an “interested party” along with grounds under which the will can be contested.
Oral wills are also called a “nuncupative will,” which means a “declared will” based on the Latin root. Traditional Roman law allowed certain property owners to declare their will aloud in front of at least seven witnesses.
The witnesses then presented the contents of the will to a magistrate, who would order property to be distributed in accordance with the oral will.
As tablet-based writing became more common in Ancient Rome, oral wills fell out of favor. However, they were still reserved for special situations where the testator was facing imminent death because of an illness or a perilous military conflict.
For this reason, an oral will is sometimes also called a “deathbed will.”
This deathbed version of oral wills found its way into the English Statute of Frauds. Such wills were only allowed in specific situations where the testator faced imminent death because of an unexpected illness or injury.
The oral will could only be used to transfer modest sums of property, and it had to be witnessed by at least two parties. The witnesses then had to write the will down (or dictate it to a notary) for the will to enter probate.
Some states still allow oral wills to be used under certain circumstances.
Ohio, for instance, follows the traditional English laws allowing for an oral will when the testator is “in the last sickness,” meaning close to death. Two “competent disinterested witnesses” have to then record the will within ten days after hearing the spoken wishes of the dying testator.
The will then has to be submitted to probate within three months of being dictated.
New York, New Hampshire, and Washington D.C. all allow for oral wills only in situations where the testator is a member of the armed forces and is participating in a dangerous combat mission or is at sea.
Other states that allow for an oral will include:
Usually, the testator must die shortly after issuing the oral will for it to be considered valid. Otherwise, they are expected to record their will in writing and execute it in the typical manner.
Also, an oral will is only effective if there are no other written copies available. Any properly executed written will supersedes the authority of an oral will, no matter how old the written version is.
In cases where the most recent written version of a will does not completely dispose of (i.e., distribute) the contents of the testator’s estate, the remaining property may potentially be distributed according to any instructions provided in an oral will.
As stated previously, New Mexico does not recognize oral wills as a matter of state law unless the will was executed in another state, country, or territory and certified as legitimate by the relevant legal authority.
If an estate in New Mexico only has an oral will to distribute it, and no other legitimate version of a will exists, the estate becomes intestate. Intestate estates are distributed to next-of-kin in an automatic fashion.
All property has to be divided evenly among beneficiaries of an intestate estate, meaning houses and other non-liquid property likely need to be sold so each person can receive equal proceeds.
Someone who is too ill to create their own will can speak their wishes aloud and have them recorded as a legitimate written will. They can also direct someone to sign the will in their presence. The signing of the will must be witnessed properly for the will to go into effect, as required by New Mexico law (NM Stat § 45-2-502).
Whether you are a personal representative of an estate with an oral will or a beneficiary of one, it can benefit you to know the common ways that wills are challenged.
A will has to be created and executed in a valid way for it to be used in New Mexico’s probate courts.
If the will was created in the state, it cannot be an oral will, per New Mexico law (NM Stat § 45-2-502). It must be “written.”
Foreign wills have to follow all of the laws in the state or country where the will was created. The personal representative of the estate then has to request someone in that jurisdiction to certify the will as valid.
If any of these steps aren’t followed, the will is invalid.
Undue influence refers to situations where someone close to the testator manipulates them into creating a will that leans heavily in the influencer’s favor. Usually, this person is someone with control over the health and living situation of the testator towards the end of their life.
The influencer may also try to convince the testator to disinherit individuals who would be presumed to inherit a large portion of the estate, such as the testator’s children or other direct relatives.
Individuals who tend to leverage undue influence can include nurses, caretakers, guardians, attorneys, financial advisors, and even members of the testator’s own family. The key to these challenges is that the testator appears to be creating a will that favors the influencer of their own volition under suspicious circumstances.
The challenger to the will has the burden of proof to establish that the testator would not have structured their will the way they did without being pressured and manipulated by the influencer.
Anyone who creates a will has to possess the mental health and awareness to be able to grasp the will’s importance. If the testator has any sort of condition that makes complex thought difficult for them — such as dementia or delirium from a terminal illness — then the will they create could be declared invalid.
If the testator created a will under false pretenses, the will could be declared invalid. That includes situations where the will was created with the help of someone who lied about their qualifications, lied about the status of the testator’s estate, or fabricated any other information to the extent that the testator felt forced to create a will that does not reflect their true wishes.
For a will to be valid, the testator has to formally declare, either in a written document or orally in front of witnesses, that they are creating a last will and testament.
Otherwise, it may be possible that the testator is merely describing possible situations or gathering their thoughts before they actually take the time to make a will.
Without proof that a testator meant for their words — written or spoken — to be used as a will, the document submitted to probate could be declared invalid.
Any bequests or devises (transfers of personal and real property, respectively) must be compliant with New Mexico law or the laws of the place where the will was created.
As a pertinent example for oral wills, many states don’t allow them to transfer real estate or any other real property, even if they allow oral wills under other circumstances. Instead, for the transfer to go through, a written addendum to the will (called a codicil) may need to be created.
The testator can also arrange for the transfer of the deed via the appropriate paperwork. If any provision of a will is unenforceable, that transfer could be disregarded, or the whole will could even be declared invalid in some cases.
Not all property has to be probated in New Mexico, so some property could still go to the intended beneficiary if proper arrangements were made in advance of the testator’s death.
Examples of property that skips probate in New Mexico include:
If an invalid oral will is the only will available for probating an estate in New Mexico, the estate is instead distributed according to state laws (NM Stat § 45-2-102; § 45-2-103). New Mexico’s intestate succession laws declare that the following parties inherit the assets of an estate that does not have a valid will:
Having only an oral will to manage an estate can present challenges, but you have options.
Reach out to our New Mexico oral will law firm to get support from experienced attorneys. We have encountered a broad range of situations during our years of practicing estate planning and probate law. We are prepared to help you and your loved ones in any way we can.
Schedule a confidential, no-obligation case review with our highly rated New Mexico oral will lawyers today when you call us at 505-503-1637 or contact us online.
CallCall now to schedule your consultation 505.503.1637
Office