To make a valid will under New Mexico law, the will must be:
- In writing;
- Signed by the testator;
- Witnessed and signed by two witnesses.
The requirements to make a valid will in New Mexico are found in NM Stat § 45-2-502.
Who Can Make a Valid Will In New Mexico?
Any individual eighteen or more years of age who is of sound mind or an emancipated minor who is of sound mind may make a valid will under New Mexico law. NM Stat § 45-2-501.
To be of sound mind under New Mexico law (to have testamentary capacity), a testator must have:
- Knowledge of the meaning of the act of making a will;
- Knowledge of the character and extent of the estate; and,
- Knowledge of the natural objects of the testator’s bounty.
A New Mexico Will Must Be Signed By the Testator Or At the Testator’s Direction
New Mexico law requires that a will must be “signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.” NM Stat § 45-2-502.
Therefore, under New Mexico law, a will is not invalid if the testator is unable to sign the will him or herself. If the testator is physically unable to sign the will, then the testator can direct another person to sign the testator’s name to the will. When a testator directs that an individual sign a will for him on his behalf, New Mexico law requires publication or some manifestation by the testator that the instrument is being signed “at his request as and for his last will and testament.” Mills v. Kelly, 1983-NMCA-018.
The person signing the will at the direction of the testator must be in the testator’s “conscious presence.” The testator must be aware that another person is signing the will for the testator, not asleep or in another room.
Witness Requirements For a Valid New Mexico Will
To be valid, a New Mexico will must be “signed by at least two individuals, each of whom signed in the presence of the testator and of each other after each witnessed the signing of the will…” NM Stat § 45-2-502. The testator and witnesses must all be together when the will is signed, and witness each other signing the will.
An individual generally competent to be a witness may act as a witness to a will in New Mexico. NM Stat § 45-2-505.
Does a New Mexico Will Have To Be Notarized To Be Valid?
No. There is no requirement under New Mexico law that in order to be valid a will must be notarized.
However, a New Mexico will may be simultaneously executed, attested and made “self-proved,” which must be done in front of a notary or other officer authorized to administer oaths under the laws of the state of New Mexico. NM Stat § 45-2-504. By making a will self-proving, the probate process can be sped up, because the probate court can admit the will to probate without hearing the testimony of the witnesses to the will.
New Mexico law provides language that should be substantially followed to make a will self-proving, which is found in NM Stat § 45-2-504. A will can be made self-proved at the time of execution or at any time after the execution by acknowledgement of the testator and the witnesses.
The best way to make sure that you have created a valid will under New Mexico law is to work with a New Mexico probate lawyer.
