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

History: 1953 Comp., § 32A-2-507, enacted by Laws 1975, ch. 257, § 2-507; repealed and reenacted by Laws 1993, ch. 174, § 30; 2011, ch. 124, § 23.

Official comments. — See Commissioners on Uniform State Law official comment to 2-507 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 30 repealed former 45-2-507 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-507, and enacted a new section, effective July 1, 1993.

Compiler's notes. — Subsections A and B of this section are similar to former 30-1-8, 1953 Comp. Subsection C is similar to former 30-1-8.1, 1953 Comp.

Cross references. — For execution of will, see 45-2-502 NMSA 1978.

The 2011 amendment, effective January 1, 2012, provided that a will is revoked by the execution of another subsequent witnessed will or self-proved will that expressly revokes the previous will.

I. GENERAL CONSIDERATION.

Scope of prior section regulating revocation. — This section (30-1-8, 1953 Comp., repealed) addresses itself only to revocation by subsequent written instrument. It does not preempt a revocation by operation of law or revocation by physical act performed on the face of the will. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301 (decided under former law).

After statute of limitations has run, validity cannot be contested by an heir on the ground that property settlement and divorce have revoked it. Stitt v. Cox, 1948-NMSC-005, 52 N.M. 24, 190 P.2d 434 (decided under former law).

Will may be revoked by operation of law. In re Roeder's Estate, 1940-NMSC-060, 44 N.M. 578, 106 P.2d 847; Brown v. Heller, 1924-NMSC-045, 30 N.M. 1, 227 P. 594 (decided under former law); In re Estate of Teopfer, 1904-NMSC-026, 12 N.M. 372, 78 P. 53 (decided under former law).

Generally, as to statutes regulating revocation. — Statutes regulating revocation of wills are generally held to be mandatory and controlling, and a will may be revoked only in the manner described by the statute. Albuquerque Nat'l Bank v. Johnson, 1964-NMSC-055, 74 N.M. 69, 390 P.2d 657 (decided under former law).

Section is mandatory only in that it governs the manner by which a will may be revoked by a subsequent written instrument. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301 (decided under former law).

Burden of proof. — Party claiming revocation has the burden of establishing that the testator revoked the earlier will. Albuquerque Nat'l Bank v. Johnson, 1964-NMSC-055, 74 N.M. 69, 390 P.2d 657 (decided under former law).

Mere intention alone, no matter how unequivocal, is not sufficient to effect the revocation of a will. Perschbacher v. Moseley, 1965-NMSC-068, 75 N.M. 252, 403 P.2d 693 (decided under former law).

Isolated surviving paragraph not given effect. — Where almost all the dispositive provisions of a will have been cancelled or where a material portion of the will is cancelled so as to indicate a definite intent that the will be cancelled in its entirety, an isolated paragraph surviving the cancellation will not be given effect. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301 (decided under former law).

II. BY WRITING.

Document revoking will was not effective. — A document titled "Revocation of Missing Will" that was signed by the decedent and two witnesses and notarized was ineffective, as a subsequent will, to revoke the decedent's missing will where the document expressly stated that the decedent intended to revoke any and all wills and codicils without making a subsequent will. Gushwa v. Hunt, 2008-NMSC-064, 145 N.M. 286, 197 P.3d 1.

Decedent's act of writing "revoked" across the pages of a photocopy of his will was not effective to revoke the will. Gushwa v. Hunt, 2008-NMSC-064, 145 N.M. 286, 197 P.3d 1.

Intention insufficient. — A declared intention to make a will does not operate as a revocation of an existing one. In re Will of Williams, 1962-NMSC-149, 71 N.M. 39, 376 P.2d 3 (decided under former law).

Effect of subsequent testamentary instrument on prior will. — The mere fact of the making of a subsequent testamentary instrument does not work a total revocation of a prior will. A subsequent testamentary instrument which is partially inconsistent with an earlier one revokes the former only as to those parts that are inconsistent. Albuquerque Nat'l Bank v. Johnson, 1964-NMSC-055, 74 N.M. 69, 390 P.2d 657 (decided under former law).

Effect of words "cancelled," "void," etc. — Writing the word "cancelled," "void" or some similar word across the dispositive provisions or other material parts of the will operates as a revocation by cancellation of the will, not by a subsequent testamentary instrument. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301 (decided under former law).

Nontestamentary document insufficient. — A document purporting to revoke a prior valid will that did not contain testamentary provisions and that was witnessed only by notary public did not satisfy the requirements of this section or 45-2-502 NMSA 1978. Sanchez v. Martinez, 1999-NMCA-093, 127 N.M. 650, 985 P.2d 1230.

Writing "void" and signing name. — Where testator printed the word "void" in letters varying from one to three inches in height, in three places across the first page and again across the second page of the two-page instrument, and wrote "By Ben B. Boddy, March 9, 1964" once on each page following the word "void," revocation was effected by cancellation of the will and not by a subsequent testamentary instrument. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301 (decided under former law).

III. BY ACT.

Joint tenancy's effect. — Placing the spouses' property in joint tenancy is in no way inconsistent with an agreement that the surviving spouse shall distribute at death all property (including property that the surviving spouse acquired through joint tenancy) in a particular manner, and the trial court erred in concluding that doing so impliedly revoked the spouses' mutual wills. Placing property in joint tenancy is a common method by which spouses transfer property upon death for the sole purpose of avoiding costs of probate. Bailey v. Caldwell, 1996-NMCA-063, 121 N.M. 854, 918 P.2d 1354.

Effect of subsequent conveyance of property willed. — If a testator, after executing a will specifically devising certain property, subsequently voluntarily conveys all or a part of the property so willed, there is an implied revocation of the will insofar as the property conveyed is concerned, and the property is adeemed from the operation of the will. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68 (decided under former law).

Concurrence of intent and act required. — There must be concurrence of intent and act to effect a revocation. Albuquerque Nat'l Bank v. Johnson, 1964-NMSC-055, 74 N.M. 69, 390 P.2d 657 (decided under former law).

Determination of intent. — Whether a will has been burned, torn, canceled, obliterated or destroyed with the intent to revoke it is a matter of fact to be determined in each particular case. In re Will of Greig, 1979-NMSC-014, 92 N.M. 561, 591 P.2d 1158 (decided under former law).

Destruction of unopened letter insufficient to revoke will. — Where testatrix after viewing special delivery envelope, but without opening it or examining its contents, states that it is her will, that she does not want it, and directs her nurse to tear it up, and the nurse in compliance with instructions of testatrix destroys the unopened envelope and its contents, there is no revocation of the will as there is no direct evidence that the will was contained in the envelope. Perschbacher v. Moseley, 1965-NMSC-068, 75 N.M. 252, 403 P.2d 693 (decided under former law).

Where testator substitutes new first page to original will and destroys the original first page, he has shown an intention to change the will but not to revoke it. In re Roeder's Estate, 1940-NMSC-060, 44 N.M. 578, 106 P.2d 847 (decided under former law).

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

For article, "Survey of New Mexico Law, 1979-80: Estates and Trusts," see 11 N.M.L. Rev. 151 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 510 to 540, 542, 548.

Necessity that later will refer to earlier will in order to effect revocation under statutes providing that a will may be revoked by a subsequent will declaring the revocation, 28 A.L.R. 691.

Implied revocation of will by later will, 51 A.L.R. 652, 59 A.L.R.2d 11.

Validity, construction and effect of provisions of will relating to its modification or revocation, 72 A.L.R. 871.

Revocation by ratification or adoption of physical destruction or mutilation of will without testator's knowledge or consent in first instance, 99 A.L.R. 524.

Necessity that physical destruction or mutilation of will be done in testator's presence in order to effect revocation, 100 A.L.R. 1520.

Possibility of avoiding or limiting effect of clause in later will purporting to revoke all former wills, 125 A.L.R. 936.

Destruction or cancellation, actual or presumed, of one copy of will of executed in duplicate, as revocation of other copy, 17 A.L.R.2d 805.

Effect of testator's attempted physical alteration of will after execution, 24 A.L.R.2d 514.

Revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 A.L.R.2d 526.

Revocation of will by nontestamentary writing, 22 A.L.R.3d 1346.

Admissibility of testator's declarations on issue of revocation of will, in his possession at time of his death, by mutilation, alteration or cancellation, 28 A.L.R.3d 994.

Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 A.L.R.3d 1223.

Testator's failure to make new will, following loss of original will by fire, theft or similar casualty, as constituting revocation of original will, 61 A.L.R.3d 958.

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 A.L.R.4th 167.

Revocation of prior will by revocation clause in lost will or other lost instrument, 31 A.L.R.4th 306.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.

Ademption or revocation of specific devise or bequest by guardian, committee, conservator, or trustee of mentally or physically incompetent testator, 84 A.L.R.4th 462.

Sufficiency of evidence of nonrevocation of lost will where codicil survives, 84 A.L.R.4th 531.

95 C.J.S. Wills §§ 271, 274, 296, 297.