In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate. If a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.

History: 1953 Comp., § 32A-3-407, enacted by Laws 1975, ch. 257, § 3-407.

Official comments. — See Commissioners on Uniform State Law official comment to 3-407 UPC.

Cross references. — For proof of death or status, see 45-1-107 NMSA 1978.

For proof of self-proved wills, see 45-2-504 NMSA 1978.

For proof of due execution of wills in informal probate, see 45-3-303 NMSA 1978.

For proof of due execution of wills in formal probate, see 45-3-405, 45-3-406 NMSA 1978.

For proof of valid power of attorney, see 45-5B-106 NMSA 1978.

For Rules of Evidence, see 11-1102 NMRA.

Effect of presumption of undue influence. — A will contestant is never required to offer direct evidence of undue influence. The mechanism of a presumption allows the will contestant to get the issue of undue influence before the finder of fact by offering only proof of a confidential relationship and suspicious circumstances, even in the face of contradictory evidence. Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109, rev'g 2008-NMCA-108, 144 N.M. 709, 191 P.3d 567.

Sufficient evidence of undue influence. — Where decedent's will left one dollar to each of the decedent's children, except one child, who was appointed as personal representative and to whom the will conveyed the remainder of the decedent's estate; the decedent depended on the beneficiary for transportation, gave the beneficiary a power of attorney and placed the beneficiary's name on the decedent's bank accounts; the decedent suffered from age-related and stroke-related loss of cognitive functioning and memory loss; approximately one year before the decedent's last will was written, the decedent signed a separate and nearly identical document to the last will that the beneficiary had written using a will template which the beneficiary obtained at a stationery store; because the prior will had not been signed in accordance with the requirements of the Uniform Probate Code, the decedent and the beneficiary instructed an attorney to prepare a will that contained the same language as the earlier will; the beneficiary spoke for the decedent; the beneficiary disparaged the other siblings; the decedent was submissive around the beneficiary; the beneficiary manipulated the decedent's bank accounts; and the beneficiary did not tell the siblings about the will or about deeds which the decedent had executed conveying the decedent's real property to the beneficiary, the evidence was sufficient to prove the existence of a confidential relationship and suspicious circumstances and raise the presumption of undue influence in the execution of the decedent's will. Chapman v. Varela, 2009-NMSC-041, 146 N.M. 680, 213 P.3d 1109, rev'g 2008-NMCA-108, 144 N.M. 709, 191 P.3d 567.

Purpose of section. — This section was intended to clarify the previously existing case law concerning undue influence, rather than to effect a substantial change. In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300.

Burden of proof. — This section requires that the contestant establish a prima facie case of undue influence. Once that initial burden has been met, the proponent has the burden of presenting evidence in opposition to the prima facie proof. If the proponent does not meet this burden, the contestant's evidence might require a finding of undue influence. In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300.

Reliance on presumption. — In making a prima facie case, a contestant may be entitled to rely on a presumption. In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300.

Proof of "due execution" where forgery in issue. — Where there was no forgery issue separable from the factual issue of "due execution," the proponent of a will, by claiming forgery, does not avoid her statutory burden of persuading the trial court of "due execution" of the alleged will. In re Estate of Foster, 1985-NMCA-038, 102 N.M. 707, 699 P.2d 638.

Generally, as to imposition of presumption of undue influence. — Where a transfer of property is made by a parent to his child, a husband to his wife, a brother to his sister, etc., it is ordinarily a natural result of the affection which normally is a concomitant of these relationships, and it would be unfair under such circumstances to impose a presumption of undue influence upon the transfer. But where, in addition to the usual circumstances, it is shown that the beneficiary of the transfer occupies a dominant position in the relationship which is not the usual circumstance in such relationships, it is proper to impose a presumption of undue influence upon the transfer. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.

Factors raising undue influence presumption. — The facts of: (1) the age, poor eyesight and lack of education of decedent; (2) decedent's poor mental history; (3) the fiduciary and confidential relationship existing between testatrix and her brothers; (4) the opportunity to exercise an undue influence; (5) the brothers' participation in the procurement of the will; and (6) the unusually large proportion of the estate received by the brothers as beneficiaries give rise to a rebuttable presumption that the brothers of decedent exerted undue influence on decedent. Hummer v. Betenbough, 1965-NMSC-075, 75 N.M. 274, 404 P.2d 110.

Not raising presumption. — A presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that a beneficiary occupies, with respect to the testator, a confidential or fiduciary relation. Hummer v. Betenbough, 1965-NMSC-075, 75 N.M. 274, 404 P.2d 110.

Confidential relationship with testator. — Evidence that a beneficiary had a confidential relationship with the testatrix is sufficient to raise a presumption of undue influence only if other suspicious circumstances are shown. Lucero v. Lucero, 1994-NMCA-128, 118 N.M. 636, 884 P.2d 527.

Evidence not rebutting presumption. — Testimony by the attorney who prepared the will that if undue influence were exerted on decedent, he had no knowledge of such influence, standing alone in the face of the strong presumption to the contrary, is not sufficient to rebut the presumption of undue influence. Hummer v. Betenbough, 1965-NMSC-075, 75 N.M. 274, 404 P.2d 110.

Presumption raised. — There was substantial evidence to support imposition of presumption of undue influence over an elderly woman who gave property to her step-grandson where: (1) the grandson gave no consideration for the property; (2) the grandmother never mentioned to close friends or family an affection for the grandson or her intent to give him the property; (3) the grandmother placed trust and reliance in the grandson's parents and grandfather to assist her in executing the documents to transfer the property; (4) the grandmother had a short and limited relationship with her grandson; and (5) she had expressed an intention to leave the subject property to her son. Montoya v. Torres, 1991-NMCA-152, 113 N.M. 105, 823 P.2d 905.

Lack of consideration for testamentary gift. — Lack of consideration for a testamentary gift is not ordinarily a "suspicious circumstance" giving rise to a finding of undue influence by the beneficiary upon the testator. Gersbach v. Warren, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811.

Secrecy on part of testator not "suspicious circumstance." — While secrecy on the part of a beneficiary of a testamentary gift may constitute a "suspicious circumstance" giving rise to a finding of undue influence, secrecy on the part of the testator does not. Gersbach v. Warren, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811.

Insufficient evidence of undue influence. — Contestant did not establish a prima facie case of undue influence, where decedent was found to be mentally alert, although elderly and sick, and she met with her lawyer on several occasions and divided her property among her closest relatives. In re Estate of Gonzales, 1988-NMCA-098, 108 N.M. 583, 775 P.2d 1300.

The totality of the circumstances did not support contestant's claim of undue influence by beneficiary upon the testator; without such a showing, the court cannot speculate upon facts underlying the will without jeopardizing the principle of testamentary freedom. Gersbach v. Warren, 1998-NMSC-013, 125 N.M. 269, 960 P.2d 811.

Evidence sufficient to establish prima facie proof of execution. In re Estate of Kimble, 1994-NMCA-028, 117 N.M. 258, 871 P.2d 22.

Execution of will. — The proponent of a document purporting to constitute a will has the burden of establishing at trial proof of the execution of the instrument. In re Estate of Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

Probate exception precludes federal jurisdiction. — Plaintiff's claim of tortious interference with inheritance based on the allegation that defendant used undue influence to cause the testator to execute a will in favor of defendant was a dispute cognizable only in the probate court, which precluded federal jurisdiction under the probate exception. Rienhardt v. Kelly, 164 F.3d 1296 (10th Cir. 1999).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 80 Am. Jur. 2d Wills §§ 952, 953.

Judgment denying validity of will because of undue influence, lack of mental capacity or the like, as res judicata as to validity of another will, deed or other instrument, 25 A.L.R.2d 657.

Modern status: inheritability or descendability of right to contest will, 11 A.L.R.4th 907.

Validity and enforceability of provision of will or trust instrument for forfeiture or reduction of share of contesting beneficiary, 23 A.L.R.4th 369.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 A.L.R.4th 561.

Sufficiency of evidence of nonrevocation of lost will not shown to have been inaccessible to testator - modern cases, 70 A.L.R.4th 323.

95 C.J.S. Wills § 384.