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Court of Wills, Estates & Probate

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

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Revoking a Will

06/30/2005
1:09 PM
Merri Rudd

 

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.

Q: How do you revoke a will in New Mexico?

The safest way to revoke a will is to make a new will that completely disposes of your entire estate. Your new will should include language, such as, "This will revokes all prior wills and codicils made by me." Be sure the complete date that you sign the new will-month, day and year-appears on the new will. You must be "of sound mind" when you execute the new will.

New Mexico law sets out another way to revoke a will--"performing a revocatory act on the will if the testator [maker of the will] performed the act with the intent and for the purpose of revoking the will…." Another individual can perform this revocatory act in the testator's "conscious presence and by the testator's direction."

Revocatory acts on the will include "burning, tearing, canceling, obliterating or destroying the will or any part of it," even if the burn, tear or cancellation does not touch any of the words on the will. However, if the intent of the testator is not clear from the revocatory acts or there is some question about who actually performed the acts, a lawsuit could ensue.

Lawsuits can be long and expensive, and the more a family dislikes or distrusts each other, the more expensive lawsuits become. Creative arguments can be made to prove or disprove a testator's intent, soundness of mind, ability to be unduly influenced, etc. A testator may intend to destroy a will by shredding or burning it, but forgets to destroy a copy of the will. Arguments could then be made in court about whether the copy should be admitted or whether the will was actually revoked.

Some people write and sign a separate document stating that they wish to revoke their will. THIS METHOD DOES NOT WORK IN NEW MEXICO!! Even if a written revocation is signed in the presence of a notary public and the testator's intent is clear, the New Mexico Court of Appeals has ruled that a separate, notarized document revoking a prior valid will does not constitute a valid revocation of the will under our state's laws. For attorneys who are shocked to learn this, the case cite is In re: Estate of Martinez, 127 N.M. 650 (Ct.App.1999).

As the above case illustrates, it is not usually desirable to be a "test case" in a court of law and to try to convince a court of a different way to interpret a law.

Some people wish to revoke only a portion of a their wills by making a codicil (amendment) to the will. As noted in prior columns, a codicil should: (1) identify the will that is being amended, including the date the will was signed; (2) state the testator's name and domicile; (3) specify in detail what changes are being made; and (4) state which sections of the will remain in effect.

A codicil must be executed in the same manner as a will. This means that you must sign and date a codicil in the presence of two witnesses who also sign the codicil. New Mexico law does not require a codicil to be notarized, but attorneys (or their staff) usually notarize wills and codicils that they prepare.

My philosophy of estate planning is to "prevent disaster." In my opinion, the cleanest way to revoke an entire will is to make a new one.

© 2005, Albuquerque Journal, All Rights Reserved 

appeared June 30, 2005, Albuquerque Journal, Business Outlook 
Reprinted with permission

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