Will Contest

When someone passes away, their estate must be settled through a process called estate administration. If the decedent left a will, their will must be filed with the court along with their death certificate. The first step in the process is for the court to decide whether to admit the will to probate. If someone objects to the will, the court must allow both sides to argue their positions in a will contest and must decide whether the will should be probated. While the Probate Court has jurisdiction over most probate matters, if probate is contested, the District Court would handle the matter.

Standing for Contesting a Will

In order to contest a will in New Mexico, the objectant must be an “interested party.” . Interested parties are individuals who are either named as beneficiaries in the will, named as beneficiaries in a prior or later will, or who would be eligible to inherit under New Mexico’s laws of intestacy. Generally, these are the only people who have a financial interest in the outcome of the matter and as a result have legal standing to initiate a will contest.

Grounds for Contesting a Will

Lack of testamentary capacity. New Mexico law requires that in order for a will to be valid, the testator must have had a “sound mind” when they executed the will. Evidence to the contrary would be grounds for a will contest. NM Stat § 45-2-501

Undue influence. If a vulnerable testator’s free will was destroyed by the manipulation of a person who the testator trusted, the will would be invalid. Signs of undue influence include the manipulator-beneficiary being present at the signing of the will, the manipulator-beneficiary recommended the attorney who drafted the will, the dispositions in the will are very different from a prior will and are “unnatural”, and the manipulator-beneficiary kept the original will after it was executed.

Improper execution. Under New Mexico law, with limited exceptions, to be valid a will must be signed by the testator and properly witnessed by at least two people. NM Stat § 45-2-502. If there are irregularities in the execution, the will may be invalid.

Fraud. Fraud occurs when someone makes a significant misrepresentation to the testator in order to manipulate the testator into making provisions in their will that the testator would not have otherwise made.

Duress. A testator must make a will out of their own free will. If a testator was coerced into creating or signing the will by force, threat of force, or other coercion, the will would have been made under duress and would not be valid.

Consequences of a Will Contest

If the will contest is unsuccessful, the will will be probated and the estate settled according to the terms of the will. If the will contest is successful, the estate will be intestate and New Mexico’s intestate succession law will apply. NM Stat § 45-2-103

Under intestate succession, if the decedent was married at the time of death and had no children the entire estate would go to the surviving spouse. If the decedent has a surviving spouse, all community property passes to the spouse. In addition, 25% of separate property goes to the spouse and 75% to the children.

If the decedent was not married at the time of death, but had children all property goes to the decedent’s children, then to grandchildren of a deceased child, then to the decedent’s parents, then to the decedent’s siblings.

If no relatives of the decedent can be found, the estate escheats to the state of New Mexico. NM Stat § 45-2-105

A no contest clause is a clause in a will that penalizes beneficiaries who object to the will. Thurs, if the will contest is unsuccessful and there was no probable cause to challenge the will, the consequence is that the penalty is triggered. The penalty is typically that the beneficiary is disinherited completely or forfeits a portion of their inheritance.

Contact Information