Challenging a Will in New Mexico
Most of the time, a there is no fight over the will. But sometimes the there can be disagreement over whether a will is valid. When that happens, the parties must fight it out in court in what is called a “will contest.” This page gives an overview of challenging a will in New Mexico.
Who can contest a will?
If you are thinking about challenging a will, the first question to ask is whether you are even allowed to do so. The law does not let just anyone challenge a will. To do so, you must have what is know as “standing.” Standing essentially means that you must be closely enough related to the will that the law will recognize your right to fight it.
There are basically three groups of people that may have standing to contest a will: the beneficiaries, the beneficiaries under prior wills, and the heirs (that is, the people who would inherit if there is no will). Each of these groups could potentially be injured (or benefitted) depending on what the will says. If you are not in one of these groups, you probably cannot challenge the will.
What are the grounds to contest a will?
Contesting a will is not easy — nor should it be. Courts seek to uphold the wishes of the testator, and will not lightly overturn them. But there are a number of recognized grounds to set aside a will. When that happens, the court may recognize an earlier will or, it none exists, may treat the estate as if there had been no will.
It is just as important to recognize one reason not to contest a will. You cannot contest a will simply because you are dissatisfied with how the decedent chose to distribute her estate. Within certain limitations, decedents may leave their estate to whomever they choose, regardless of whether others believe that is fair.
Here are some reasons a will can be successfully challenged:
Lack of capacity. A will is not valid if the testator lacked the capacity to make it. For there to be capacity, the testator must have had knowledge if the meaning of executing a will, the extent and character of her estate, and the natural objects of her bounty.
Undue influence. Undue influence is when a person is induced by various means to execute an instrument that, in reality, is the will of another substituted for that of the donor. To challenge a will on this basis, a party must show that the influencer had a close relationship with the testator and that there were suspicious circumstances.
Improper Execution. While New Mexico does not require much in the way of formalities for a will to be valid, there are some requirements. To be valid, a will must be (1) signed by two witnesses and (2) notarized. Courts will not accept a New Mexico will that does not meet these requirements.
There are other grounds as well. Depending on the facts, it may be possible to challenge a will based on duress, breach of fiduciary duty, or fraud.
Don’t Go It Alone
If you’ve read the above overview and think you might need to challenge a will, you should find an attorney to help. Will contests are litigation, and representing yourself in litigation is like bringing a knife to a gun fight. In addition, many estate and probate lawyers are not litigators. If you are involved in a New Mexico will contest, you should find a New Mexico litigator experienced in this type of litigation.
We formed New Mexico Probate and Estate Lawyers to help people in exactly that situation. For a free consultation with one of our attorneys to see whether we can help, please contact us at (505) 370-1500.