2019 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Section 45-3-406 - Formal testacy proceedings; contested cases; testimony of attesting witnesses.

Universal Citation: NM Stat § 45-3-406 (2019)

A. If evidence concerning execution of a will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses is required if he is within New Mexico, competent and able to testify. Otherwise, due execution of a will may be proved by other evidence.

B. If the will is self-proved in a contested case, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness, upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.

History: 1953 Comp., § 32A-3-406, enacted by Laws 1975, ch. 257, § 3-406.


Official comments.See Commissioners on Uniform State Law official comment to 3-406 UPC.

Compiler's notes. — This section includes within its scope some of the functions of former 30-2-9, 1953 Comp.

Cross references. — For general provisions concerning fraud, see 45-1-106 NMSA 1978.

For Rules of Evidence, see 11-101 NMRA.

Evidence sufficient to establish prima facie proof of execution. In re Estate Kimble, 1994-NMCA-028, 117 N.M. 258, 871 P.2d 22.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842; 80 Am. Jur. 2d Wills § 1008.

Compromise or settlement of controversy over will as changing nature of interest or estate under will, 5 A.L.R. 1384.

Creditor of heir, right to contest will, 46 A.L.R. 1490, 128 A.L.R. 963.

Contract to refrain from contesting will, 55 A.L.R. 811.

Executor or trustee named in will as beneficiary within rule that activity of beneficiary in preparation of will raises presumption of undue influence, 63 A.L.R. 948.

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

Presumption and burden of proof as to undue influence on testator, 66 A.L.R. 228, 154 A.L.R. 583.

Admissibility and credibility of testimony of subscribing witness tending to impeach execution of will or testamentary capacity of testator, 79 A.L.R. 394.

Admissibility of declarations of testator on issue of undue influence, 79 A.L.R. 1447, 148 A.L.R. 1225.

Admissibility and weight on issue of mental capacity or undue influence, in respect of will or conveyance, of instruments previously executed by person in question, 82 A.L.R. 963.

Codicil as affecting application of statutory provision to will, or previous codicil not otherwise subject, or as obviating objections to lack of testamentary capacity, undue influence or defective execution otherwise fatal to will, 87 A.L.R. 836.

Fraud as distinguished from undue influence as ground for contesting will, 92 A.L.R. 790.

Undue influence by third person in which immediate beneficiary did not participate, 96 A.L.R. 613.

Form and particularity of allegations to raise issue of undue influence, 107 A.L.R. 832.

Right of assignee of expectancy to contest will, 112 A.L.R. 84.

Legal capacity of one whom testator had agreed to adopt, but whose adoption had not been effected, to contest will, 112 A.L.R. 1422.

Necessity of allegations that contestant of will is interested party, 117 A.L.R. 1455.

Admissibility of evidence on question of testamentary capacity or undue influence in a will contest as affected by remoteness, relative to the time when the will was executed, of the facts or events to which the evidence relates, 124 A.L.R. 433, 168 A.L.R. 969.

Proof, or possibility of proof, of will without testimony of attesting witness as affecting application of statute relating to invalidation of will, or of devise or legacy, where attesting witness is beneficiary under will, 133 A.L.R. 1286.

Right of one not otherwise qualified to contest will or to appeal from probate to do so by virtue of status as husband or wife, prospective heir or next of kin of living person who is entitled but does not exercise or consent to exercise of the right, 149 A.L.R. 1270.

Probative value of opinion testimony of handwriting experts that document is not genuine, opposed to testimony of persons claiming to be attesting witnesses, 154 A.L.R. 649.

Contingent interest as sufficient to entitle one to oppose or contest will or codicil, 162 A.L.R. 843.

Instructions, in will contest, defining natural objects of testator's bounty, 11 A.L.R.2d 731.

Right of debtor of or person claimed to be liable to estate to contest will or challenge its admission to probate, 15 A.L.R.2d 864.

Nuncupative will, effectiveness where essential witness thereto is beneficiary, 28 A.L.R.2d 796.

Interlineations and changes appearing on face of will, 34 A.L.R.2d 619.

Proof of due execution of lost will, 41 A.L.R.2d 393.

Validity and enforceability of agreement to drop or compromise will contest or withdraw objections to probate, or of agreement to induce others to do so, 42 A.L.R.2d 1319.

Right of trustee named in earlier will to contest or seek to revoke probate of later will, 94 A.L.R.2d 1409.

Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix, 17 A.L.R.3d 503.

Family settlement of testator's estate, 29 A.L.R.3d 8.

Competency, as witness attesting will, of attorney named therein as executor's attorney, 30 A.L.R.3d 1361.

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.

Liability in damages for interference with expected inheritance or gift, 22 A.L.R.4th 1229.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 A.L.R.5th 590.

Action for tortious interference with bequest as precluded by will contest remedy, 18 A.L.R.5th 211.

95 C.J.S. Wills §§ 392, 393, 411, 422.

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