Can I challenge a will I suspect is forged—and how do I get it thrown out under New Mexico law?
Short answer: If you reasonably believe a will is forged, you can ask the probate court to refuse to admit it and to set aside any probate actions taken based on that will. In New Mexico you must act promptly, gather clear evidence (original documents, witness statements, handwriting or forensic analysis, medical records), and file a will-contest or related motion in the probate court where the estate is being administered. This article explains the steps, the typical burden of proof, and practical tips to preserve evidence and protect estate assets.
Disclaimer
This article is educational only and is not legal advice. It explains general principles of New Mexico probate law. For advice about your specific situation, consult a licensed New Mexico probate attorney.
How New Mexico law treats forged wills (overview)
New Mexico uses the state probate code for wills and estate administration. Challenges to a will generally proceed through the probate court. A will can be attacked for forgery, lack of testamentary capacity, improper execution, undue influence, or revocation. When you claim forgery, you ask the court to find the document was not the testator’s lawful act and therefore not a valid will.
Primary legal source: New Mexico’s Probate Code (NMSA 1978, Chapter 45). For official statute text and related probate provisions, see the New Mexico Legislature statutes page: https://www.nmlegis.gov/Legislation/Statutes. For practical probate information and local court contacts, see the New Mexico Courts probate pages: https://www.nmcourts.gov/.
Step-by-step: What to do if you suspect a will is forged
1. Confirm whether probate has started and get the file
Check with the probate court in the county where the decedent lived to see if a will was filed and whether the estate is open. Obtain certified copies of:
- The will filed with the court (ask for the original, if the court has it).
- The petition for probate, inventory, and any letters testamentary or letters of administration.
- Any affidavits, declarations, or documents attached to the probate petition.
2. Preserve evidence—you must act quickly
Preserve the original will and any related documents. If the original is with someone other than the court, notify the court and the personal representative in writing that you dispute authenticity and ask the court to order preservation or transfer of the document to the court registry. Consider asking the court for an emergency order to prevent distribution of assets if there is risk of loss.
3. Gather evidence that supports forgery
Common useful evidence:
- Comparative handwriting samples (other signatures of the decedent).
- Notary or witness information: in New Mexico wills usually require witnesses; get contact details for the attesting witnesses or the notary.
- Medical records showing the decedent lacked capacity at the alleged signing time.
- Communications (emails, texts, letters) that contradict the will’s terms or show someone else signed or substituted a document.
- Chain-of-custody evidence showing the will’s custody was suspicious (documents discovered in odd places, sudden appearance after a prior will was known, etc.).
- Expert reports—handwriting analysts, forensic document examiners, and medical/psychiatric experts.
4. Talk to witnesses and involved parties
Interview witnesses who allegedly saw the decedent sign the will and anyone who was present around the decedent near the signing date. Statements from the attesting witnesses are especially important because many wills must be signed before witnesses; if the attesting witnesses do not recall signing or say they did not witness the signature, that is powerful evidence against validity.
5. File a formal challenge in probate court
If probate is pending or the will has been admitted, you (as an “interested person” such as an heir, beneficiary under an earlier will, or creditor) must file a petition contesting admission of the will or a motion to revoke probate. Typical filings include:
- A petition to contest the will’s validity alleging forgery and factual support.
- A motion for temporary relief (e.g., restraining order, freeze on distributions) if assets are at risk.
Timing matters. Courts typically expect challenges promptly after notice of probate. While specific deadlines and procedures are in New Mexico’s probate statutes and court rules, you should not wait months without talking to counsel because courts may limit late challenges or apply doctrines that make challenges harder. See the New Mexico Legislature statutes for probate procedures: https://www.nmlegis.gov/Legislation/Statutes.
6. Burden of proof and litigation
When you challenge a will for forgery, you will generally carry the burden of proving forgery by a preponderance of the evidence (more likely than not). Evidence may include expert handwriting testimony, witness testimony that the testator did not sign, or proof the signature was created after the testator’s death or by another person. The personal representative and proponents of the will will present evidence supporting authenticity—attesting witness testimony, notary certificates, or other proof.
7. Possible outcomes
- The court finds the will forged or invalid and refuses to admit it; distribution follows a prior valid will or intestacy rules.
- The court invalidates part of the will (e.g., specific pages) but admits the remainder if valid.
- The parties settle, often redistributing assets without a trial.
- The contest fails and the will remains admitted; the losing side may face costs or fee claims depending on the case facts and court discretion.
Practical hints to increase your chance of success
- Act quickly. Preserve documents and ask the court to secure the original will.
- Get legal help. Probate litigation has procedural traps, strict local rules, and tight deadlines.
- Collect contemporaneous proof of the decedent’s capacity and intentions—medical records, prior wills, and communications.
- Obtain an experienced forensic document examiner early to compare signatures and detect alterations.
- Interview and, if possible, get signed declarations from attesting witnesses before memories fade.
- Document suspicious behavior around the decedent near the time of death (isolation, new helpers, sudden changes in estate documents).
- Consider mediation—many will disputes settle and mediation can preserve estate value and family relationships.
Procedural and evidentiary notes specific to New Mexico
New Mexico’s probate code governs how wills are proved, admitted, and contested. The probate court controls admission of wills and may require original documents and witness testimony. For exact statutory language and filing requirements consult the New Mexico statutes and local court probate rules:
- New Mexico Legislature statutes: https://www.nmlegis.gov/Legislation/Statutes (search for “Chapter 45” or “Probate Code”).
- New Mexico Courts information and local probate contacts: https://www.nmcourts.gov/.
When to hire an attorney
Hire a New Mexico probate litigator if you plan to contest a will or need emergency court relief. An attorney can:
- File the correct petition with proper timing and jurisdiction.
- Move for emergency asset preservation if distributions are imminent.
- Coordinate forensic experts, take witness depositions, and present evidence at trial.
- Negotiate settlements or alternatives such as mediation.
Final checklist
- Confirm whether probate has started and get certified court files.
- Preserve the original will and related documents immediately.
- Collect medical records, previous wills, handwriting samples, and witness names.
- Ask the probate court to freeze distributions if assets are at risk.
- File a timely contest or petition with the assistance of a probate attorney.
- Prepare for expert testimony and possible settlement discussions.
Helpful links and resources
- New Mexico Legislature: Statutes search and full text (search for Probate Code / Chapter 45): https://www.nmlegis.gov/Legislation/Statutes
- New Mexico Courts (contact the probate division in your county): https://www.nmcourts.gov/
- Find a New Mexico licensed probate attorney through the state bar or local county bar referral service.
Closing
Allegations of a forged will are serious and often emotionally charged. Prompt action preserves evidence and protects estate assets. Because the law and filing deadlines matter, speak with a New Mexico probate attorney quickly if you suspect forgery. They can advise on emergency motions, evidence collection, and the likelihood of success in contesting the will.