A. A contract to make a will or devise or not to revoke a will or devise or to die intestate, if executed after the effective date of this article, may be established only by:

(1) provisions of a will stating material provisions of the contract;

(2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or

(3) a writing signed by the decedent evidencing the contract.

B. The execution of a joint will or of mutual wills does not create a presumption of a contract not to revoke the will or wills.

History: 1978 Comp., § 45-2-514, enacted by Laws 1993, ch. 174, § 37.

Official comments. — See Commissioners on Uniform State Law official comment to 2-514 UPC.

Standard of proof of contract to make a will. — Contestants are bound to establish the existence of a contract to make a will by clear and convincing evidence. Naranjo v. Armijo, 2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.

Applicability of Uniform Probate Code. — Since the testators' wills were drafted in 1973, three years before the effective date of the Uniform Probate Code, any contractual provisions of the wills were not subject to the provisions of this section. Bailey v. Caldwell, 1996-NMCA-063, 121 N.M. 854, 918 P.2d 1354.

Evidence of oral contract to devise family farm. — Letters between decedent and decedent's sibling were sufficient to satisfy the statute of frauds and constituted evidence of an oral contract between the siblings to devise the family farm to the survivor. Varoz v. Varoz, 2008-NMSC-027, 144 N.M. 7, 183 P.3d 151.

Evidence of contractual wills. — Invalid will may provide sufficient evidence to establish contract if it also establishes the existence of the agreement, the essential terms of the agreement, and is signed by the party to be charged. In re Estate of Vincioni, 1985-NMCA-013, 102 N.M. 576, 698 P.2d 446, cert. denied 102 N.M. 613, 698 P.2d 886.

Contractual will established. — Evidence that plaintiff gave of plaintiff's time and effort to clean and repair house so as to make it easier to keep in exchange for a promise to transfer the house at the time of decedent's death, decedent's statement in decedent's letter to plaintiff that the will that decedent had shown plaintiff was "good as gold if [you] help[ed] me get the house in shape so it [would] be easy to keep clean," which was done and settled, established a contract. Aragon v. Boyd, 1969-NMSC-016, 80 N.M. 14, 450 P.2d 614.

Contractual will not established. — Use of the words "we," "us," and "our" throughout the contested will did not establish a contract to make a will but were merely expressions which would be used in any joint will, nor did paragraph stating that parties agreed that the will's provisions should not be changed except by our mutual consent establish a contract not to revoke a will, since neither that paragraph nor any other section of the will evidenced a promise between either testator and a third party, and the provision bequeathing the decedent's property to the surviving spouse "absolutely" bore this out as the plain meaning of the document. Naranjo v. Armijo, 2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.

A joint will between the decedent and decedent's first spouse did not meet the statutory criteria for establishing a contractual and irrevocable will, since none of the statutory provisions for doing so were met and, while there was no question of its being a joint and contemporaneously executed will, neither of these facts created a presumption of a contract not to revoke. In re Estate of Heeter, 1992-NMCA-032, 113 N.M. 691, 831 P.2d 990, cert. denied 113 N.M. 690, 831 P.2d 989.

Effect of contractual will.— A contractual will is binding on a survivor once that survivor accepts the benefits from the first deceased's will. Foulds v. First Nat'l Bank, 1985-NMSC-092, 103 N.M. 361, 707 P.2d 1171.

Where estate of surviving spouse who remarries disposed of. — Joint and mutual last will and testament of spouses that was made irrevocable and provided for a life estate in the survivor and that all the estate upon the death of the survivor should go to the nieces and nephews of both testators disposed of entire estate of surviving spouse, even where the surviving spouse had remarried and was also beneficiary of predeceased second spouse's estate. In re Will of McDowell, 1970-NMSC-080, 81 N.M. 562, 469 P.2d 711.