Ask the Probate Judge—Three More Will Questions
Rudd, appeared March 18, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: I have a question about your column on holographic wills. The writer said, "No one witnessed her will, but it is notarized." Doesn't the notarization constitute a functional equivalent (and a legal equivalent) of "witnessing" a will (or any other legal document)? J.N., Albuquerque
No, notarization is not the equivalent of witnessing a will. New Mexico law requires that two witnesses sign a will, along with the testator (person making the will). The notary's job is to verify the identification of the testator and witnesses and to sign and seal or stamp the "subscribed, sworn to and acknowledged before me" notary statement on the document.
Bottom line: if you created in will in New Mexico that had no witnesses but was notarized, the will would be invalid and would not be admitted into probate here.
One exception involves a 1983 New Mexico case where a will had the signatures of the testator, one witness, and the notary. The court "counted" the notary as a second witness in that particular case and allowed the will into probate. This method of witnessing a will is strongly discouraged. Every lawyer I know in New Mexico uses two witnesses and a separate notary, if any. In over three years at the Probate Court, I have never seen a will with one witness and a notary's signature.
On other legal documents, such as powers of attorney and trusts, notarization of the maker's signature is sufficient, without witnesses.
Q: My wife and I made a will many years ago, but now we have had a death in the family. We need to make some changes in the will. If we make the changes, are we required to get the same witness signatures that were the ones who signed our original will? J.H.
No, you can use any "competent" individuals as witnesses to your will, per New Mexico law. They do not need to be the same people who witnessed your original will. New Mexico does not even have an age requirement for witnesses, although using minors as witnesses is not recommended. Just make sure that you and the two witnesses are all together and watch each other sign. The will or codicil should include language that states this was done.
Q: You said that it was against the law in New Mexico for a paralegal to write a will without being supervised by an attorney. How does the law read on a private individual with no law training to write wills for other people? Would the will be legal? L.S.
A private individual with no law training may write his or her own will, but may not prepare any legal documents for anyone else.
It is not so much that the will would be illegal-it might be valid if it were properly drafted and witnessed. But the non-lawyer who prepared the will is violating state law in doing so. Plus, if the person preparing the will has no law training, why would you have confidence that the document is prepared correctly?
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved