A. Subject to appeal and subject to vacation as provided in this section and in Section 45-3-413 NMSA 1978, a formal testacy order under Sections 45-3-409 through 45-3-411 NMSA 1978, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will and to the determination of heirs, except that:

(1) the court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of:

(a) its existence at the time of the earlier proceeding; or

(b) the earlier proceeding and were given no notice thereof except by publication;

(2) if intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were:

(a) unaware of their relationship to the decedent;

(b) were unaware of his death; or

(c) were given no notice of any proceeding concerning his estate except by publication;

(3) a petition for vacation under either Paragraph (1) or (2) of this subsection shall be filed prior to the earliest of the following time limits:

(a) if a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate or, if the estate is closed by statement, six months after the filing of the closing statement;

(b) whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 45-3-108 NMSA 1978 when it is no longer possible to initiate an original proceeding to probate a will of the decedent; or

(c) twelve months after the entry of the order sought to be vacated;

(4) the order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs; and

(5) the finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Subsection C of Section 45-3-403 NMSA 1978 was made.

B. If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands or the value of distributions received by them to the extent that any recovery from distributees is equitable in view of all of the circumstances.

History: 1953 Comp., § 32A-3-412, enacted by Laws 1975, ch. 257, § 3-412; 1995, ch. 210, § 35.

Official comments. — See Commissioners on Uniform State Law official comment to 3-412 UPC.

The 1995 amendment, effective July 1, 1995, in Subsection A, substituted "Section 45-3-413 NMSA 1978" for "Section 3-413" and substituted "Sections 45-3-409 through 45-3-411 NMSA 1978" for "Sections 3-409 through 3-411" in the introductory paragraph; substituted "shall be filed" for "must be filed" in the introductory paragraph of Paragraph (3); substituted "Section 45-3-108 NMSA 1978" for "Section 3-108" in Subparagraph (3)(b); substituted "Section 45-3-403 NMSA 1978" for "Section 3-403" in Paragraph (5); and made minor stylistic changes.

Knowledge of later-offered will. — Insofar as a party who had knowledge of the contents of a later-offered will reasonably believed that will to have been destroyed as of the time of the decedent's death, she was entitled to relief. Pidcock v. Apodaca, 2001-NMCA-037, 130 N.M. 460, 26 P.3d 764, cert. denied, 130 N.M. 484, 27 P.3d 476.

Rule not inconsistent with section. — The provisions of Rule 60(b)(1), N.M.R. Civ. P. (now Rule 1-060B(1) NMRA), which provide for relief for mistake, inadvertence, surprise, or excusable neglect, are not inconsistent with the grounds for relief stated in this section. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Triggering of twelve-month time limit. — Amended order issued under Rule 1-060(A) NMRA to correct clerical orders in the original probate order did not vacate the original order; as a result, the twelve-month time limit in Subparagraph A(3)(c) for challenging the court's heirship findings was triggered at the time of the original order, not the amended order. Harrell v. Hayes, 1998-NMCA-136, 126 N.M. 23, 965 P.2d 939.

Adequate notice. — Where it was undisputed that son received first petition by certified mail and that he and his mother retained counsel to participate in probate proceeding, statutory and constitutional notice requirements were complied with. In re Estate of Gaines, 1992-NMCA-027, 113 N.M. 652, 830 P.2d 569.

Showing required. — This section requires a showing of a will or an omitted heir, and such a showing is a necessary circumstance without which it would be inappropriate to modify or vacate a "final" order. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Husband's sworn disclaimer of any interest in his wife's estate, except insofar as he might be a devisee under a will, is substantial evidence, in itself, to support a trial court's finding that the husband had not brought himself within Subsection A(2) of this section. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554.

Where time for appealing formal testacy order had run, the distribution of the estate was res judicata absent fraud or jurisdictional error. In re Estate of Kemnitz, 1981-NMCA-013, 95 N.M. 513, 623 P.2d 1027.

Law reviews. — For annual survey of New Mexico law relating to estates and trusts, see 12 N.M.L. Rev. 363 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842; 80 Am. Jur. 2d Wills §§ 1063, 1065.

95 C.J.S. Wills §§ 502, 574, 584.