2019 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 2 - Intestate Succession and Wills
Part 5 - WILLS
Section 45-2-501 - Who may make will.

Universal Citation: NM Stat § 45-2-501 (2019)

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.

History: 1953 Comp., § 32A-2-501, enacted by Laws 1975, ch. 257, § 2-501; repealed and reenacted by Laws 1993, ch. 174, § 25; 2011, ch. 124, § 22.


Repeals and reenactments. — Laws 1993, ch. 174, § 25 repealed former 45-2-501 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-501, and enacted a new section, effective July 1, 1993.

Compiler's notes. — This section is similar to former 30-1-1, 1953 Comp.

Cross references. — For age of majority, see 12-2A-3 and 28-6-1 NMSA 1978.

The 2011 amendment, effective January 1, 2012, permitted an emancipated minor of sound mind to make a will.

Person under conservatorship. — Substantial evidence supported the district court's finding that a 93-year-old testator under conservatorship had sufficient testamentary capacity to execute a will; the Uniform Probate Code distinguishes a conservatorship from a guardianship and contains no prohibition on executing a new will merely because a conservator of the person's property has been appointed. In re Estate of Lucero, 1994-NMCA-128, 118 N.M. 636, 884 P.2d 527, superseded by statute, Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109.

Sufficient evidence of testamentary capacity. — There was substantial evidence to support the trial court's finding that the decedent had testamentary capacity to make the will in question, including the testimony of the two attesting witnesses to the will, both lawyers, the lawyer who drew the will in question, and two doctors, that decedent was competent to make the will, notwithstanding evidence that decedent had been adjudicated incompetent and had a guardian appointed to manage decedent's property a week later. Hummer v. Betenbough, 1965-NMSC-075, 75 N.M. 274, 404 P.2d 110.

Evidence supported finding that 72-year-old testator, who married testator's former housekeeper after entering hospital as a patient and who executed will following the marriage, leaving testator's property to testator's spouse, had testamentary capacity sufficient to execute will, and was not under undue influence even though testator's earlier will had named testator's sibling to receive testator's property and even though testator's spouse had only taken care of and waited on testator as his housekeeper for two years prior to his death. McElhinney v Kelly, 1960-NMSC-112, 67 N.M. 399, 56 P.2d 113.

Evidence of lack of testamentary intent. — The jury had no substantial evidence from which it could conclude that testator was lacking the mental capacity to make a will since all of the testimony reflected a perfectly natural deterioration of decedent in decedent's later years, including physical weakness, mental weakness, loss of some memory and some power of decision, but there not a single word of testimony addressed to the three controlling elements of testamentary capacity, namely: (1) knowledge of the meaning of the act of making a will, (2) knowledge of the character and extent of the estate and (3) knowledge of the natural objects of testator's bounty. Calloway v. Miller, 1954-NMSC-014, 58 N.M. 124, 266 P.2d 365.

Presumption of incapacity. — Adjudication of testator as insane a few months before testator executed purported will raised a presumption of lack of testamentary capacity that was not overcome by decedent's siblings' evidence. In re Armijo's Will, 1953-NMSC-095, 57 N.M. 649, 261 P.2d 833.

Right to dispose of estate by will given. — This section (30-1-1, 1953 Comp., repealed) gives every person 21 years old (now age of majority) and of sound mind the right to dispose by will of his separate estate without restriction. In re Estate of McMillen, 1903-NMSC-012, 12 N.M. 31, 71 P. 1083 (decided under prior law).

Law reviews. — For article, "Mental Incompetency to Make a Will," see 7 Nat. Resources J. 89 (1967).

For comment, "Community Property - Power of Testamentary Disposition - Inequality Between Spouses," see 7 Nat. Resources J. 645 (1967).

For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For annual survey of New Mexico Law of Wills and Trusts, see 20 N.M.L. Rev. 439 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 56, 70 to 101.

Epilepsy as affecting testamentary capacity, 16 A.L.R. 1418.

Admissibility of evidence other than testimony of subscribing witnesses to prove due execution of will or testamentary capacity, 63 A.L.R. 1195.

Admissibility of evidence of reputation on issue of mental condition, or testamentary or contractual capacity or incapacity, 105 A.L.R. 1443.

Illustrations of instructions or requested instructions as to effect of unnaturalness or unreasonableness of provisions of will on question of testamentary capacity or undue influence, 137 A.L.R. 989.

Admissibility and probative force, on issue of competency to execute an instrument, of evidence of incompetency at other times, 168 A.L.R. 969.

Insane delusion as invalidating a will, 175 A.L.R. 882.

Admissibility, on issue of testamentary capacity, of previously executed wills, 89 A.L.R.2d 177.

Effect of guardianship of adult on testamentary capacity, 89 A.L.R.2d 1120.

Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 A.L.R.3d 15.

May parts of will be upheld notwithstanding failure of other parts for lack of testamentary capacity or undue influence, 64 A.L.R.3d 261.

Sufficiency of evidence that will was not accessible to testator for destruction, in proceeding to establish lost will, 86 A.L.R.3d 980.

Base for determining amount of bequest of a specific percent or proportion of estate or property, 87 A.L.R.3d 605.

Condition that devisee or legatee shall renounce, embrace, or adhere to specified religious faith, 89 A.L.R.3d 984.

Alzheimer's disease as affecting testamentary capacity, 47 A.L.R.5th 523.

94 C.J.S. Wills § 150; 95 C.J.S. Wills § 462.

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