A. A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing:

(1) a petition as described in Subsection A of Section 3-402 [45-3-402 NMSA 1978] in which he requests that the court, after notice and hearing, enter an order probating a will; or

(2) a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application; or

(3) a petition in accordance with Subsection C of Section 3-402 [45-3-402 NMSA 1978] for an order that the decedent died intestate.

B. A petition may request formal probate of a will without regard to whether or not the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.

C. During the pendency of a formal testacy proceeding, the probate court shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.

D. Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously-appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. If a petitioner requests the appointment of a different personal representative in a formal proceeding, the previously-appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate, or unless the district court orders otherwise.

History: 1953 Comp., § 32A-3-401, enacted by Laws 1975, ch. 257, § 3-401.

Official comments. — See Commissioners on Uniform State Law official comment to 3-401 UPC.

Cross references. — For right to jury trial in formal testacy proceeding, see 45-1-306 NMSA 1978.

Tort of interference with inheritance. — Where there was both an intervivos transfer of all the property of a decedent's estate prior to the decedent's death and a claim of improper influence in the revision of the decedent's will by the execution of a codicil, an attack on the codicil in a probate proceeding would not be an adequate remedy because the estate was devoid of assets. Plaintiff was not required to proceed in probate, but could proceed in a civil tort action of intentional interference with inheritance to attack the validity of the codicil. Peralta v. Peralta, 2006-NMCA-033, 139 N.M. 231, 131 P.3d 81.

Tort of interference with inheritance is an exception to the requirement that probate is the only forum for attacking the validity of a testamentary instrument and exists in a situation where the estate has been depleted so that there is no remedy in probate. Peralta v. Peralta, 2006-NMCA-033, 139 N.M. 231, 131 P.3d 81.

Statutes permitting contest of wills to be strictly construed. — There was no right to contest a will at common law and the right to do so exists by virtue of the statutes which being in derogation of common law must be strictly construed. C. de Baca v. Baca, 1964-NMSC-006, 73 N.M. 387, 388 P.2d 392 (decided under former law).

Formal proceeding. — Under Paragraph (2) of Subsection A, the mere filing of a petition to set aside an informal probate of a will is enough to commence a formal probate proceeding; the court does not have to approve the petition. In re Estate of Duncan, 2002-NMCA-069, 132 N.M. 426, 50 P.3d 175, rev'd on other grounds sub nom. Estate of Duncan v. Kinsolving, 2003-NMSC-013, 133 N.M. 821, 70 P.3d 1260.

Declaratory judgment. — A motion for declaratory relief to resolve issues relating to a lease of property passed on through a will is a request to have the court exercise its general civil jurisdiction and, thus, a request to prevent informal probate. In re Estate of Duncan, 2002-NMCA-069, 132 N.M. 426, 50 P.3d 175, rev'd on other grounds sub nom. Estate of Duncan v. Kinsolving, 2003-NMSC-013, 133 N.M. 821, 70 P.3d 1260.

Settlement and distribution petition subordinate. — A will contestant's petition for a formal testacy proceeding filed pursuant to this section and within the three-year limit of 45-3-108 NMSA 1978 took precedence over a personal representative's petition for settlement and distribution of the estate filed pursuant to 45-3-1001 NMSA 1978. Vieira v. Estate of Cantu, 1997-NMCA-042, 123 N.M. 342, 940 P.2d 190.

Wills must be filed for probate upon death of testator, and no will may be accepted for filing prior to the death of the testator. 1958 Op. Att'y Gen. No. 58-159 (opinion rendered under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842; 80 Am. Jur. 2d Wills § 952.

Right to probate subsequently discovered will as affected by completed prior proceedings in intestate administration, 2 A.L.R.4th 1315.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder, 78 A.L.R.4th 90.

95 C.J.S. Wills § 307.