JULY 19, 1999 VOLUME 7, NUMBER 3
Jose C. Martinez lived and died in Belen, New Mexico. Mr. Martinez was the father of ten children, and in 1984 he had signed a will leaving his real estate to two of the children.
In 1995, Mr. Martinez signed a document called "Revokation of Last Will and Testament of Jose Martinez." This document indicated Mr. Martinez' intention to revoke the "previous WILL which was exeucted approximately Twelves years ago." The "Revokation" was also signed by one of his daughters, was notarized and apparently was filed with the Valencia, New Mexico, County Clerk.
Mr. Martinez died two years later. He had executed no new will since 1984, and so the question for the courts was whether the 1984 was still valid, or had been effectively revoked.
After the trial court found that the will had been revoked and that Mr. Martinez' estate would be divided equally among his ten children, one of his daughters filed an appeal. Interestingly, the daughter who appealed would actually receive less under the will if it was admitted to probate; although she had been named as Personal Representative under the will, she was not one of the two children who would share Mr. Martinez' real property, which apparently was the bulk of his estate.
New Mexico (like Arizona and 14 other states) has adopted the Uniform Probate Code. One provision of the Code sets out how a will may be revoked. As adopted in both New Mexico and Arizona, two methods of revocation are permitted. A will can be revoked either by a new will which expressly revokes the previous will (or which is so inconsistent with the previous will as to effectively revoke it), or by "performing a revocatory act on the will...." A "revocatory act" is defined to include "burning, tearing, canceling, obliterating or destroying the will or any part of it."
Did Mr. Martinez revoke his will when he signed the "Revokation?" Assuming he was competent to do so, it may be assumed that his intention was to revoke the will. But, according to the New Mexico Court of Appeals, his failure to comply with the statute defeated his attempted revocation. The will was admitted to probate despite Mr. Martinez' signature, and apparent intention, to the contrary. Estate of Martinez, June 8, 1999.
Arizona, since it shares the exact same language on revocation of wills from the Uniform Probate Code, should be expected to reach the same result. But the New Mexico opinion notes that the same result would probably have been reached even before the Uniform Probate Code's adoption in that state, based on common-law principles regarding will revocation.
Some states, noted the New Mexico court, permit revocation of wills by a writing other than a new will. Usually, however, the revocation must comply with the same execution requirements as a will; in other words, a written revocation still would have to be witnessed by two people. Since Mr. Martinez' "Revokation" did not meet that standard, it would not have been an effective document under New Mexico's law even before the adoption of the Uniform Probate Code.
If Mr. Martinez was unable to locate the original of his old will, what could he have done to revoke it? Under the Uniform Probate Code and the law of many states, his only choice would have been to sign a new will which included revocation of the old document.