A. If fraud has been perpetrated in connection with any proceeding or in any statement filed under the [Uniform] Probate Code or if fraud is used to avoid or circumvent the provisions or purposes of the code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud. No proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud.

B. Subsection A of this section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate.

History: 1953 Comp., § 32A-1-106, enacted by Laws 1975, ch. 257, § 1-106.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Nature of fraud. — The "fraud" contemplated by Subsection A is ordinary, common-law fraud. Eoff v. Forrest, 1990-NMSC-033, 109 N.M. 695, 789 P.2d 1262.

The "other party" whose reliance is essential for a valid cause of action is the court to which the representation is made. Eoff v. Forrest, 1990-NMSC-033, 109 N.M. 695, 789 P.2d 1262 (decided under prior law).

Elements of action based on fraud. — The well-established requirements under New Mexico law for an action based on fraud apply to a claim of fraud asserted under Subsection A: (a) a misrepresentation of fact, (b) known by the maker to be false, (c) made with the intent to deceive and to induce the other party to act in reliance, and (d) actually relied on by the other party to his or her detriment. Eoff v. Forrest, 1990-NMSC-033, 109 N.M. 695, 789 P.2d 1262

Undue influence found. — Where the court found that decedent would not, except for the influence practiced upon him by party, have executed the instrument, nothing more was required for a finding of undue influence. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961 (decided under former law).

Influence between family members. — 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. 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, a position which is not the usual circumstance in such relationships, then 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 (decided under former law).

Summary judgment. — District court erred in finding that there was no genuine issue as to one or more of the material facts necessary to give rise to a claim for fraud in connection with the informal probate of a will, where questions raised by the papers filed with the probate court constituted issues of fact and affidavits in support of a motion for summary judgment did not negate them. Eoff v. Forrest, 1990-NMSC-033, 109 N.M. 695, 789 P.2d 1262.

Timeliness of action involving fraud. — Because the district court found that a personal representative used fraud to circumvent the provisions of the Uniform Probate Code, petitioners had two years in which to file their claims, and their claims were timely where they were filed within one month of their receipt of the will, whose terms had been misrepresented to them by the personal representative. Gardner v. Gholson, 1992-NMCA-122, 114 N.M. 793, 845 P.2d 1247.

Law reviews. — For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 37 Am. Jur. 2d Fraudulent Conveyances § 113; 47 Am. Jur. 2d Judgments § 887; 51 Am. Jur. 2d Limitations of Actions §§ 406, 409; 79 Am. Jur. 2d Wills § 885.

Person taking under probate of forged or fraudulent will as trustee ex maleficio, 52 A.L.R. 779.

Concealment of or failure to disclose existence of person interested in estate as extrinsic fraud which will support attack on judgment in probate proceedings, 113 A.L.R. 1235.

Statute limiting time for probate of will as applicable to will probated in another jurisdiction, 87 A.L.R.2d 721.

What circumstances excuse failure to submit will for probate within time limit set by statute, 17 A.L.R.3d 1361.

37 C.J.S. Fraud § 67; 37 C.J.S. Fraudulent Conveyances § 337; 54 C.J.S. Limitation of Actions §§ 32, 192 to 197.