2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 2 - Intestate Succession and Wills
Part 5 - WILLS
Section 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.

History: 1953 Comp., § 32A-2-502, enacted by Laws 1975, ch. 257, § 2-502; repealed and reenacted by Laws 1993, ch. 174, § 26; 1995, ch. 210, § 11.

Repeals and reenactments. — Laws 1993, ch. 174, § 26 repealed former 45-2-502 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-502, and enacted a new section, effective July 1, 1993.

Compiler's notes. — This section is similar to former 30-1-4, 1953 Comp.

Cross references. — For who may witness, see 45-2-505 NMSA 1978.

For general rule of competency of witnesses, see 11-601 NMRA.

The 1995 amendment, effective July 1, 1995, rewrote the section to such an extent that a detailed comparison would be impracticable.

Intent of decedent. — The totality of the circumstances did not support contestant's claim of undue influence by beneficiary upon the testator; without such a showing, the court cannot speculate upon facts underlying the will without jeopardizing the principle of testamentary freedom. Gersbach v. Warren, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811.

Witness's undue influence questioned. — A devisee's signature as a third witness was unnecessary to prove due execution of a contested will (45-2-502(A) NMSA 1978), so it could not be said that devisee participated in procuring the will by securing its execution. In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300.

A complete attestation clause above the signature of the witnesses to a will raises a presumption of the due execution of the will, if the signatures of the testator and witnesses are proved to be genuine. In re Akin's Estate, 1937-NMSC-068, 41 N.M. 566, 72 P.2d 21; In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539.

Presumption of due execution is not sufficient to create a prima facie case for the proponents of a will. New Mexico is now guided by Rule 301, N.M.R. Evid. In re Estate of Padilla, 1982-NMCA-033, 97 N.M. 508, 641 P.2d 539.

In the absence of an attestation clause, if the will is subscribed by the genuine signature of the testator with the genuine signatures of two persons under the word "witnesses" below the signature of the testator, the presumption of due execution applies if the subscribing witnesses are dead or cannot recall with certainty any of the details of the transaction. In re Akin's Estate, 1937-NMSC-068, 41 N.M. 566, 72 P.2d 21.

Same number of witnesses for codicil and will. — A codicil must be attested by the same number of witnesses as is required for the original will. Garcia y Perea v. Barela, 1890-NMSC-009, 5 N.M. 458, 23 P. 766, rehearing denied, Garcia y Perea v. Barela, 1891-NMSC-034, 6 N.M. 239, 27 P. 507.

Where oral declarations by testator of change of will admissible. — Declarations of the testator in a probate proceeding tending to corroborate existing physical evidence showing that a will made and executed by testator had been later changed by him were admissible as an exception to the hearsay rule. In re Roeder's Estate, 1940-NMSC-046, 44 N.M. 429, 103 P.2d 631, later appeal, 1940-NMSC-060, 44 N.M. 578, 106 P.2d 847.

Essential hallmarks of will. — Revocability during a testator's lifetime, and an intent that the disposition take effect only after the death of the testator, are essential hallmarks of a will. Mills v. Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

Testator must manifest that will signed for him "at his request". — When a testator directs that an individual sign a will for him on his behalf, Subsection B of 45-2-502 NMSA 1978 requires publication or some manifestation by the testator that the instrument is being signed "at his request as and for his last will and testament." Mills v. Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

Testator must indicate to witnesses that instrument signed is his will. Mills v. Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

Someone other than testator may declare instrument witnessed to be testator's will. — A declaration that the instrument to be witnessed is the will of testator may be made by one other than the testator if the testator indicates his agreement thereto. Mills v. Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

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 45-2-507 NMSA 1978 or this section. Sanchez v. Martinez, 1999-NMCA-093, 127 N.M. 650, 985 P.2d 1230.

Notary public as witness. — Where a notary public drafted a will for a decedent, saw the decedent sign the document, signed the document in the presence of the decedent and the other witness, and identified himself in the document as a notary public, he signed the will as a witness. In re Estate of Martinez, 1983-NMCA-050, 99 N.M. 809, 664 P.2d 1007.

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

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, 1982-83: Estates and Trusts," see 14 N.M.L. Rev. 153 (1984).

For comment, "Effectuating the Intent of the Testator: New Mexico Boys Ranch, Inc. v. Hanvey," see 14 N.M.L. Rev. 419 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 23 to 36, 254, 271, 329.

Manner of signing as affecting sufficiency of signature of testator, 31 A.L.R. 682, 42 A.L.R. 954, 114 A.L.R. 1110.

Effect of illegibility of signature of testator or witness to will, 64 A.L.R. 208.

Acknowledgment of signature by testator or witness to will as satisfying statutory requirement that testator or witness sign in the presence of each other, 115 A.L.R. 689.

Admissibility of testator's declarations upon the issue of the genuineness or due execution of purported will, 62 A.L.R.2d 855.

Will or instrument in form of will as sufficient memorandum of contract to devise or bequeath, 94 A.L.R.2d 921.

Necessity that attesting witness realize instrument was intended as will, 71 A.L.R.3d 877.

Requirement that holographic will, or its material provisions, be entirely in testator's handwriting as affected by appearance of some printed or written matter not in testator's handwriting, 37 A.L.R.4th 528.

Payable-on-death savings account or certificate of deposit as will, 50 A.L.R.4th 272.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 A.L.R.4th 561.

Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 A.L.R.5th 965.

94 C.J.S. Wills §§ 152, 177, 182, 183.