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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Witness Requirements for Wills

11/01/2001
1:37 PM
Merri Rudd

Q: Could you elaborate a bit more about who may witness a will? Your last column said a will must be "witnessed by two competent people." Is there no age limit? M.H.

How clever of you to notice that I did not mention an age limit for witnesses! You’re correct, you only need to be old enough to understand what being a witness means.

The testator (person making the will) and personal representative (executor of the will) must be 18 or older. But anyone generally competent to be a witness, regardless of age, may watch you sign your will. We have cases in this state where 12 or 13-year-old children witnessed a will. A six-year-old child, no matter how precocious, is probably not competent to serve as a witness.

New Mexico law also allows "interested witnesses" to sign a will. "Interested witnesses" may include heirs, devisees, children, spouses, and others who might benefit from a will.

Using interested witnesses is not always wise. Having friends, neighbors, or staff at an attorney's office serve as witnesses would help to counter any suggestion that you are being influenced by your beneficiaries when you sign your will.

To comply with New Mexico law, the witnesses must both be present to watch you sign and date your will and must also sign the will in your presence and in the presence of each other. New Mexico does not allow you to make a holographic will, which is usually handwritten with no witnesses.

The witnesses’ job is to attest that:

  • they saw you sign the will;
  • you signed willingly;
  • you were 18 or over;
  • you were of sound mind;
  • you were under no undue influence or constraint;
  • everyone stayed together to watch each other sign.

If, for some reason, you are unable to sign your name, New Mexico law allows you to direct someone else to sign your will for you. You, the person signing for you, and the two witnesses must all watch each other sign the will.

New Mexico law does not require a will to be nota rized, but most attorneys who prepare a will for you do notarize it. This makes the will harder to challenge and avoids having to locate witnesses at a later date. When you and the witnesses sign the will in the presence of a notary public, the will is considered "self-proved" under New Mexico law Section 45-2-504. This section contains the specific language to make a will self-proved.

© 2001, Merri Rudd & Albuquerque Journal, All Rights Reserved

Appeared November 1, 2001 Albuquerque Journal, Business Outlook

Reprinted with permission

 

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