Ask the Probate Judge—Seeing Will After Death
Rudd, appeared April 26, 2007, 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: Suppose a woman dies leaving a widower and daughters from a prior marriage. The estate is not large, and everything is held in joint tenancy with the surviving husband. The wife left a will leaving everything to the husband, and he is named personal representative. Husband does not intend to probate the will, and certainly it is not necessary to do so. If husband receives an inquiry from his stepdaughter asking for a copy of the will, is he legally obligated to give her one? In this particular case, there is something hurtful in the will about the stepdaughter, and husband is trying to protect her. L.K., Albuquerque
A few years ago I wrote about whether one is entitled to see another's will during the life of the testator. Short answer: no. If a testator allows someone to see a will during his or her lifetime, fine. If not, usually you must wait. And now, thanks to thinking about this question, I have an old Stanley Brothers' tune playing in my head, "Nobody's business, nobody's business, Nobody's business what I do."
Your question, however, raises the issue of whether a person is entitled to see a decedent's will after death. The short answer is, "No, the husband does not have to reveal the will to the stepdaughter unless ordered to do so by the district court."
If the wife's estate required a probate, then the will would have to be submitted to the court presiding over the case. Once the case was filed, the will would become public record and anyone could view it. However, if filing a probate is unnecessary, the will remains private absent a court order.
If someone insists upon seeing a will, New Mexico's law allows "persons interested in decedents' estates [to] … petition the district court for orders in formal proceedings within its jurisdiction."
This procedure might be useful if someone is hiding a will that requires a probate, perhaps because they do not like the contents or because of family conflicts. This remedy can compel those who are reluctant to cooperate, whether for altruistic or belligerent reasons, to produce the will.
So the stepdaughter could file a formal testacy proceeding in the district court and demand that the husband produce the will. But the law also allows any interested person who opposes the probate of a will for any reason to state objections in writing to the court. After hearing both sides of the story, the district court would decide whether to compel the husband to produce the will.
The law further states, "Any person who refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."
Using this method in your example would be costly, time-consuming, and probably would not change the result in this particular case. As the surviving joint tenant, the husband receives all assets, and the wife's will should not affect those joint tenancy transfers.
Your scenario presents a classic "no win" situation. Either the husband shares the will with the stepdaughter without a court order, and the stepdaughter's feelings are hurt by the contents. Or the stepdaughter initiates a court proceeding at her own expense to demand that the will be produced and still gets her feelings hurt, plus spends several hundred dollars in the process.
Now the phrase, "Be careful what you wish for" comes to mind.
© 2007, Merri Rudd & Albuquerque Journal, All Rights Reserved