the Probate Judge—Revoking a Will
Rudd, appeared June 30, 2005, 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: 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