WILLS

NMSA 1978 ch. 45, art. 2, pt. 5

in effect

NMSA 1978, § 45-2-501 Who may make will

45-2-501. Who may make will An individual eighteen or more years of age who is of sound mind or an emancipated minor who is of sound mind may make a will. 1953 Comp., § 32A-2-501, enacted by Laws 1975, ch. 257, § 2-501; repealed and reenacted by Laws 1993, ch. 174, § 25; 2011, ch. 124, § 22.

NMSA 1978, § 45-2-502 Execution; witnessed wills

45-2-502. Execution; witnessed wills Except as provided in Sections 45-2-506 and 45-2-513 NMSA 1978, a will must be: A. in writing; B. signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and C. signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will as described in Subsection B of this section. 1953 Comp., § 32A-2-502, enacted by Laws 1975, ch. 257, § 2-502; repealed and reenacted by Laws 1993, ch. 174, § 26; 1995, ch. 210, § 11.

NMSA 1978, § 45-2-503 Reserved

NMSA 1978, § 45-2-504 Self-proved will

45-2-504. Self-proved will A. A will may be simultaneously executed, attested and made self-proved by acknowledgment thereof by the testator and affidavits or affirmations under penalty of perjury of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form: "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. ______________________________ Testator ______________________________ Testator 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. ______________________________ Witness ______________________________ Witness ______________________________ Witness ______________________________ Witness State of ______________ County of ________________ Subscribed and sworn to, or affirmed under penalty of perjury, and acknowledged before me by ____________, the testator, and subscribed and sworn to, or affirmed under penalty of perjury, before me by __________ and __________, witnesses, this __________ day of __________. (Seal) (Signed) ______________________________ ______________________________________ (Official capacity of officer)". (Signed) ______________________________ ______________________________________ (Official capacity of officer)". B. An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits or affirmation under penalty of perjury of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under official seal, attached or annexed to the will in substantially the following form: "I, __________________, the testator, swear or affirm under penalty of perjury on this _____________ day of ____________ that I requested ______________ and ____________ to act as witnesses to my will; that I declared to them and the undersigned authority that this document is my will; that I signed this will in the presence of both witnesses; that they signed 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 signed it; that it clearly and accurately expresses my wishes; that I signed it willingly (or willingly directed another to sign for me); that I made and signed 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. ______________________________ Testator ______________________________ Testator We, ________________________ and ______________________, witnesses, do hereby swear or affirm under penalty of perjury on this ___________________ day of __________________ that the testator, ________________, declared the attached document to be his or her will; that the testator signed it willingly (or willingly directed another to sign for the testator); that the testator signed it in the presence of both of us and requested both of us to sign as witnesses; that each of us, in the presence of the testator and in the presence of each other, signed this will as witness to the testator's signing; that so far as we could determine, the testator is eighteen years of age or older; that the testator was not acting under duress, menace, fraud or undue influence of any person; and that the testator, in our opinion, was mentally capable of disposing of the testator's estate by will. ______________________________ Witness ______________________________ Witness ______________________________ Witness ______________________________ Witness State of __________________________ County of ________________________ Subscribed and sworn to, or affirmed under penalty of perjury, and acknowledged before me by ___________, the testator, and subscribed and sworn to, or affirmed under penalty of perjury, before me by ___________ and ___________, witnesses, this ___________ of ___________. (Seal) (Signed) ______________________________ ______________________________________ (Official capacity of officer)". (Signed) ______________________________ ______________________________________ (Official capacity of officer)". C. A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will if necessary to prove the will's due execution. 1953 Comp., § 32A-2-504, enacted by Laws 1975, ch. 257, § 2-504; repealed and reenacted by Laws 1993, ch. 174, § 27; 1995, ch. 210, § 12; 2017, ch. 41, § 15.

NMSA 1978, § 45-2-505 Who may witness

45-2-505. Who may witness A. An individual generally competent to be a witness may act as a witness to a will. B. The signing of a will by an interested witness does not invalidate the will or any provision of it. 1953 Comp., § 32A-2-505, enacted by Laws 1975, ch. 257, § 2-505; repealed and reenacted by Laws 1993, ch. 174, § 28.

NMSA 1978, § 45-2-506 Choice of law as to execution

45-2-506. Choice of law as to execution A written will is valid if executed in compliance with Section 45-2-502 NMSA 1978 or if its execution complies with the law at the time of execution of the place where the will is executed or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national. 1953 Comp., § 32A-2-506, enacted by Laws 1975, ch. 257, § 2-506; repealed and reenacted by Laws 1993, ch. 174, § 29; 2016, ch. 69, § 709.

NMSA 1978, § 45-2-507 Revocation by writing or by act

45-2-507. Revocation by writing or by act A. A will or any part thereof is revoked: (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; (2) by executing another subsequent document in the manner provided for in Section 45-2-502 or 45-2-504 NMSA 1978, or both, that expressly revokes the previous will or part thereof; or (3) by performing a revocatory act on the will if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a "revocatory act on the will", whether or not the burn, tear or cancellation touched any of the words on the will. B. If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. C. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. D. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent that the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent that the wills are not inconsistent. 1953 Comp., § 32A-2-507, enacted by Laws 1975, ch. 257, § 2-507; repealed and reenacted by Laws 1993, ch. 174, § 30; 2011, ch. 124, § 23.

NMSA 1978, § 45-2-508 Revocation by change of circumstances

45-2-508. Revocation by change of circumstances Except as provided in Sections 45-2-803 and 45-2-804 NMSA 1978, a change of circumstances does not revoke a will or any part of it. 1953 Comp., § 32A-2-508, enacted by Laws 1975, ch. 257, § 2-508; repealed and reenacted by Laws 1993, ch. 174, § 31.

NMSA 1978, § 45-2-509 Revival of revoked will

45-2-509. Revival of revoked will A. If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act pursuant to Paragraph (2) of Subsection A of Section 45-2-507 NMSA 1978, the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent written declarations that the testator intended the previous will to take effect as executed. B. If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act pursuant to Paragraph (2) of Subsection A of Section 45-2-507 NMSA 1978, a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent written declarations that the testator did not intend the revoked part to take effect as executed. C. If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will remains revoked in whole or in part unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect. 1953 Comp., § 32A-2-509, enacted by Laws 1975, ch. 257, § 2-509; repealed and reenacted by Laws 1993, ch. 174, § 32.

NMSA 1978, § 45-2-510 Incorporation by reference

45-2-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. 1953 Comp., § 32A-2-510, enacted by Laws 1975, ch. 257, § 2-510; 1993, ch. 174, § 33.

NMSA 1978, § 45-2-511 Testamentary additions to trust

45-2-511. Testamentary additions to trust A. A will may validly devise property to the trustee of a trust established or to be established: (1) during the testator's lifetime by the testator, by the testator and some other person or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts; or (2) at the testator's death by the testator's devise to the trustee if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator regardless of the existence, size or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable or because the trust was amended after the execution of the will or the testator's death. B. Unless the testator's will provides otherwise, property devised to a trust described in Subsection A of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. C. Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse. 1953 Comp., § 32A-2-511, enacted by Laws 1975, ch. 257, § 2-511; repealed and reenacted by Laws 1993, ch. 174, § 34.

NMSA 1978, § 45-2-512 Events of independent significance

45-2-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. 1953 Comp., § 32A-2-512, enacted by Laws 1975, ch. 257, § 2-512; 1993, ch. 174, § 35.

NMSA 1978, § 45-2-513 Separate writing identifying devise of certain types of tangible personal property

45-2-513. Separate writing identifying devise of certain types of tangible personal property A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be: A. referred to as one to be in existence at the time of the testator's death; B. prepared before or after the execution of the will; C. altered by the testator after its preparation; or D. a writing that has no significance apart from its effect on the dispositions made by the will. 1953 Comp., § 32A-2-513, enacted by Laws 1975, ch. 257, § 2-513; repealed and reenacted by Laws 1993, ch. 174, § 36.

NMSA 1978, § 45-2-514 Contracts concerning succession

45-2-514. Contracts concerning succession A. A contract to make a will or devise or not to revoke a will or devise or to die intestate, if executed after the effective date of this article, may be established only by: (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. B. The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills. 1978 Comp., § 45-2-514, enacted by Laws 1993, ch. 174, § 37.

NMSA 1978, § 45-2-515 Deposit of will with court in testator's lifetime

45-2-515. Deposit of will with court in testator's lifetime A will may be deposited by the testator or his agent with the clerk of any district court in New Mexico for safekeeping pursuant to rules of that court. The will shall be kept confidential. During the testator's lifetime, a deposited will shall be delivered only to him or to a person authorized in writing signed by him to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under district court procedures designed to maintain the confidential character of the document to the extent possible and to assure that it will be resealed and left on deposit after the examination. Upon being informed of the testator's death, the district court clerk shall notify any person designated to receive the will and deliver it to him on request, or the court clerk may deliver the will to the appropriate court. 1978 Comp., § 45-2-515, enacted by Laws 1993, ch. 174, § 38.

NMSA 1978, § 45-2-516 Duty of custodian of will; liability

45-2-516. Duty of custodian of will; liability A. Any person having custody of a will shall, as soon as he is informed of the death of the testator, deliver the will to a person able to secure its probate or, if none is known, to an appropriate court. B. If any person having the custody of a will fails to produce the will as provided for in Subsection A of this section, after receiving a reasonable notice to do so, he is liable to any person aggrieved for the damages that may be sustained by the failure. C. Any person who refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court. 1978 Comp., § 45-2-516, enacted by Laws 1993, ch. 174, § 39.

NMSA 1978, § 45-2-517 Penalty clause for contest

45-2-517. Penalty clause for contest A provision in a governing instrument purporting to penalize an interested person for contesting the governing instrument or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings. 1978 Comp., § 45-2-517, enacted by Laws 1995, ch. 210, § 13; 2016, ch. 69, § 710.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18546/index.doFetched: 10/20/2026