New Mexico Probate Will Contests

A will contest is a formal objection to a will’s validity. In essence, a person challenging a will argues that the proffered will does not match the testator’s intentions, or that it was not properly executed. Only certain people may challenge a will, and only for certain reasons.

Challenges to Last Will and Testaments 

Who can challenge a will?

Not just anyone can challenge a will. To have standing to contest a will’s validity, the person challenging it must be an “interested person.” In New Mexico, this term is defined broadly and includes “heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against a trust estate or the estate of a decedent, a minor protected person or an incapacitated person.” It also includes persons having priority for appointment as personal representatives and other fiduciaries representing interested persons.

That’s a pretty long definition. In essence, however, to challenge a will, one must either be named in the will, be an heir, or have a direct pecuniary interest in the estate. If an interested person believes there are grounds to challenge the will, the law allows them to make that challenge in court.

On what grounds can a will be challenged?

Although there are a variety of reasons to challenge a will, the three most common are undue influence, lack of testamentary capacity, and fraud. Each of these are related, and a challenger will often allege more than one ground when trying to set aside a will.

Common Last Will Challenges

Undue Influence

One of the most common reasons to attack a will is for undue influence. In an undue influence case, a person uses their influence over the decedent to cause them to change the will. In essence, the person uses their influence over the donor to substitute their desires for those of the decedent.

In New Mexico, a person challenging a will based on undue influence must show two things first, that the person had a close relationship with the decedent. At one extreme, this has been satisfied by a close friendship. On the other end of the spectrum, it includes fiduciaries, such as powers of attorney.

Second, a challenger must show that there were suspicious circumstances surrounding the will change. There are several factors to consider when deciding whether suspicious circumstances exist. For example, the court is more likely to find undue influence if the decedent suffered from a weakened physical or mental condition. It is also more likely when the new beneficiary gave nothing for the bequest or when they aided in procuring the gift. Undue influence often involves an “unnatural” disposition—for example, if a person leaves money or property to someone she just met instead of to her children. And undue influence is more likely when the new will is kept secret.

If a court finds that there was a close relationship and suspicious circumstances, the challenged will may be set aside for undue influence.


Lack of Testamentary Capacity

Another common reason to challenge a will is a lack of testamentary capacity. Many people may be familiar with this from hearing the phrase “of sound mind” because capacity deals with a person’s mental state and ability to understand.

For a will to be valid, the person making it must know three things. First, she must know the meaning of making a will—that is, she must understand what a will is and why she would want it. Second, she must know the character and extent of her estate—i.e., what she has that would be distributed under the will. Finally, she must know the “natural objects of her bounty” or who would inherit her estate if she did not direct otherwise in her will.

Testamentary capacity challenges are fact-specific. A challenger must demonstrate, through evidence, that the person who made the will did not understand one or more of these concepts. This may involve proof of the decedent’s dementia, insanity, or other mental impairment. The evidence can range from expert testimony about medical records to simple testimony from family members that the decedent did not understand what was happening in day-to-day activities. Ultimately, however, the question is whether the decedent lacked the capacity to understand the three factors above when the will was made.



Though it is less common, a will may also be set aside for fraud. This can come in several flavors. For example, a will can be set aside if it is forged. Proving a will forgery may require handwriting experts and the use of numerous legitimate signatures. However, not every case of fraud is that obvious. Fraud may also be found when a person induces someone to sign a will by lying to them about it—for example, by misrepresenting the will’s contents to convince them to sign it.

 New Mexico Probate & Estate Lawyers are here to help you understand New Mexico probate will contests.

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