Detailed Answer — How New Mexico law treats a lost or destroyed will
Short answer: In New Mexico, a will that cannot be located after the testator’s death can still be given effect if someone proves what the will said and shows it was not intentionally revoked. If the proponent cannot meet the required proof, the estate may be treated as if there is no valid will (intestate succession under New Mexico law).
This explanation summarizes how probate courts in New Mexico typically handle lost or destroyed wills, what evidence you will need, and what can happen if the will can’t be proved. This is educational information only — it is not legal advice.
Basic legal framework
New Mexico’s probate rules and statutes govern wills, probate procedure, and intestate succession. If a will cannot be located at the time of death, New Mexico courts will look at two separate issues:
- Whether the will was validly executed in the first place (signed, witnessed, notarized as required); and
- Whether the will was revoked before death. A common presumption can arise if a will was last in the testator’s possession and is then missing at death: courts may presume the testator destroyed or revoked it.
To have a lost or destroyed will admitted to probate, the person asking the court to admit it (the proponent) must present evidence of the will’s contents and overcome any presumption of revocation. New Mexico courts require persuasive proof — often described as clear and convincing evidence — that the document existed, its contents, and that the testator did not revoke it.
Typical paths the court will consider
- Admitting a copy of the will: If a photocopy, draft, or electronic copy of the will exists, the proponent can petition the probate court to admit the copy. The court will require evidence showing the copy accurately reflects the testator’s last valid will and that the testator did not revoke the will before death.
- Proving contents from secondary evidence: If no copy exists, the court may allow proof of the will’s terms through witness testimony, drafts, contemporaneous notes, emails, or other reliable evidence that establishes what the testator intended.
- Presumption of revocation: If the will was in the testator’s possession and is missing after death, the law permits a presumption that the testator destroyed it with intent to revoke. The proponent must rebut that presumption with convincing evidence (for example, credible testimony that the testator lost the will, proofs showing an earlier revocation was impossible, or that someone else removed it without the testator’s consent).
- If proof fails: If the court finds insufficient proof of a valid, unrevoked will, the decedent’s property will be distributed according to New Mexico’s intestacy laws (the default rules that govern inheritance when there is no valid will).
Evidence that helps admit a lost or destroyed will
Useful evidence commonly accepted by New Mexico probate courts includes:
- A photocopy or electronic copy of the will (with testimony confirming its authenticity).
- Testimony from the will’s attesting witnesses that they signed and witnessed the will and that the copy reflects the original.
- Evidence that the testator told others about the will’s contents, such as recorded statements, emails, or letters.
- Proof that the testator kept the will in a place and manner that makes accidental loss plausible (locked safe, attorney’s file), and no steps by the testator indicate an intent to revoke.
- Evidence defeating the presumption of revocation — for example, showing someone else had access and removed/destroyed the will without the testator’s knowledge.
What the proponent must typically file in probate court
- A petition to open probate and to admit the copy or to prove the contents of the lost will.
- Affidavits or testimony from witnesses and any attesting witnesses (if available).
- Copies or other documents showing the will’s text — drafts, emails, scanned copies, or previous filings.
- Evidence or affidavits addressing whether the testator revoked the will.
Possible outcomes
- If the court admits the will (or a proven copy), the estate is settled under the will’s terms.
- If the court finds the will was revoked or cannot be proved, the estate follows New Mexico’s intestacy rules and is distributed to heirs under statute.
- If the court admits a will but finds suspicious circumstances (fraud, undue influence, or lack of capacity), interested parties can contest the will and ask the court to set it aside.
For more on New Mexico statutes and probate procedure, see the New Mexico Legislature’s statutes and the New Mexico Courts site for probate information: New Mexico Statutes and Legislature and New Mexico Courts.
Practical examples (hypothetical)
Example 1 — Lost but provable: Maria kept her will in her attorney’s file. After she died, only a photocopy was found on her computer. The attorney testifies that an original was executed and that the photocopy matches. Two attesting witnesses confirm signing. The court admits the copy.
Example 2 — Presumed revoked: John normally kept his will in a locked safe at home. After he died, no will was found and the safe was empty. Evidence shows John had access and no one else had a key. The court presumes John revoked the will by destroying it; without strong rebuttal, the estate is treated as intestate.
How a lawyer can help
- Prepare and file the petition to admit a copy or to prove contents of a lost will.
- Gather and present witness affidavits and documentary evidence to rebut a presumption of revocation.
- Represent the estate or interested parties in any will contest or hearings.
- Explain the practical consequences (timelines, costs, likely outcomes) and potential alternatives such as mediated settlement if heirs disagree.
Where to look in New Mexico law
New Mexico’s probate and wills rules are contained in the New Mexico Statutes and interpreted by New Mexico courts. For the text of the statutes and related probate procedure, consult the New Mexico Legislature website and the New Mexico Courts website listed above. If you need statute-by-statute guidance, an attorney licensed in New Mexico can identify the exact statutory provisions and recent case law that apply to your situation.
Disclaimer
This article provides general information about New Mexico probate practice and is not legal advice. Laws change and every case turns on its facts. Consult a licensed New Mexico attorney to get advice tailored to your situation.
Helpful Hints
- Search thoroughly before concluding a will is lost — check attorneys’ files, safe-deposit boxes, home safes, and electronic backups.
- Locate any copies (paper, scanned PDF, email drafts) and preserve them immediately — they can be vital evidence.
- Identify and contact attesting witnesses quickly — their testimony carries strong weight.
- Document the chain of custody for the original will’s last known location and who had access.
- Collect contemporaneous evidence of the testator’s intent: emails, text messages, notes, or statements about estate plans.
- If you suspect someone destroyed the will intentionally, gather evidence and report to an attorney — courts view alleged revocation seriously.
- Expect hearings: proving a lost will often requires at least one probate hearing where witnesses testify under oath.
- If you are an executor or potential heir, consider mediation or settlement negotiations early to avoid expensive litigation.
- Keep copies of any probate filings and court orders — they affect title and distribution of estate assets.
- When in doubt, consult a New Mexico probate attorney as soon as possible — timely action preserves evidence and legal options.