Dear Judge Rudd:

Ask the Probate Judge-Holographic Wills

By Merri Rudd, appeared November 15, 2001 Albuquerque Journal, Business Outlook

Reprinted with permission

Q: I read your article in the Outlook section of the Journal on holographic wills. Can the text of the will be typed or must it definitely be handwritten? Can you cite the New Mexico statute that disallows holographic wills? Is the key element the lack of witnesses, or the fact that the will was handwritten, or the combination of the two? C.T., B.N.

I hope you both noticed that I said holographic wills made in New Mexico are not valid. Technically a will is holographic "if the signature and material provisions are in the handwriting of the testator [maker]," but the will is unwitnessed. Over half of the states in the United States, including our neighbors Utah, Colorado, Arizona, and Texas, recognize holographic wills as being valid.

New Mexico does not allow you to make a holographic will here, because the legislature chose NOT to include that option when it passed its Uniform Probate Code governing wills and probates. Holographic wills are open to challenges, such as fear of forgery because of the lack of witnesses. Others argue that counterfeiting the testator’s handwriting would be difficult; therefore the requirement that the will be mostly in the testator’s handwriting is adequate protection against forgery.

A holographic will might be valid in New Mexico if, before moving to New Mexico, you signed the holographic will in a state where holographic wills are valid. This is because New Mexico generally honors wills from other states if they were valid in the state where they were created.

New Mexico’s Uniform Probate Code Section 45-2-502 requires wills to be:

in writing;
signed by the testator or by someone directed by the testator to sign in the testator’s presence; and
signed by two witnesses, both of whom sign in each other’s presence and the testator’s presence. (Even though the statute does not say so, be sure and date your will, too.)

A handwritten will made in New Mexico is valid as long as it meets the above requirements. But that is different from a holographic will that is handwritten, signed by you, and unwitnessed. As we all now know, a holographic will is not valid if made in New Mexico. Further, a handwritten or typewritten will made here that is signed by you and only one witness would not be valid.

Bottom line: whether you type or hand-write your will, make sure it is properly witnessed, preferably with the correct end-of-the-will language found in Section 45-2-504.