2021 New Mexico Statutes
Chapter 45 - Uniform Probate Code
Article 3 - Probate of Wills and Administration
Section 45-3-404 - Formal testacy proceedings; written objections to probate.

Universal Citation: NM Stat § 45-3-404 (2021)

In a formal testacy proceeding, any interested person who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.

History: 1953 Comp., § 32A-3-404, enacted by Laws 1975, ch. 257, § 3-404.


Official comments.See Commissioners on Uniform State Law official comment to 3-404 UPC.

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

For fraud in closing statement, see 45-3-1005 NMSA 1978.

Time limit for filing objections and jury trial demand. — As long as the objection to the probate of a will under 45-3-404 NMSA 1978 is filed in good faith and at a reasonable time, and is not found by the trial court to be interposed for delay or other improper purpose, a jury demand filed contemporaneously with it should be deemed timely. MorloIock v Lozoya, 2001-NMCA-030, 130 N.M. 258, 23 P.3d 933.

Presumption of undue influence. — Where a transfer of property is made by a parent to his child, a husband to his wife, a brother to his sister, etc., it is ordinarily a natural result of the affection which normally is a concomitant of these relationships, and it would be unfair under such circumstances to impose a presumption of undue influence upon the transfer. But where, in addition to the usual circumstances, it is shown that the beneficiary of the transfer occupies a dominant position in the relationship which is not the usual circumstance in such relationships, then it is proper to impose a presumption of undue influence upon the transfer. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 842, 847; 80 Am. Jur. 2d Wills § 938.

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

Right of creditor of heir to contest will, 46 A.L.R. 1490, 128 A.L.R. 963.

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

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.

Right of heirs, next of kin or others who would have benefited by denial of probate of will, to share in the consideration for an agreement to which they were not parties to withdraw objections to probate, 120 A.L.R. 1495.

Presumption and burden of proof as regards continuance or revocation of will produced for probate, 165 A.L.R. 1188.

Estoppel to contest will or attack its validity, 28 A.L.R.2d 116, 78 A.L.R.4th 90.

Right of executor or administrator to contest will or codicil of his decedent, 31 A.L.R.2d 756.

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.

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

Modern status: inheritability or descendability of right to contest will, 11 A.L.R.4th 907.

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

95 C.J.S. Wills §§ 322, 374.

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