In the absence of a finding of a contrary intention, the rules of construction in Chapter 45, Article 2, Part 7 NMSA 1978 control the construction of a governing instrument. The rules of construction in Chapter 45, Article 2, Part 7 NMSA 1978 apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument.

History: 1953 Comp., § 32A-2-701, enacted by Laws 1975, ch. 257, § 2-701; repealed and reenacted by Laws 1993, ch. 174, § 49.

Official comments. — See Commissioners on Uniform State Law official comment to 2-701 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 49 repealed former 45-2-701 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-701, relating to contracts concerning succession, and enacted a new section, effective July 1, 1993.

Cross references. — For definition of "survive", see 45-1-201 NMSA 1978.

For requirement that heir survive decedent for 120 hours, see 45-2-104 NMSA 1978.

Testator's intent controls. — Where a dispute exists as to the meaning of a provision in a will, the intention of the testator as expressed in testator's will controls the legal effect of testator's dispositions. In re Estate of Kelly, 1983-NMCA-018, 99 N.M. 482, 660 P.2d 124.

Considerations in determining intent. — Intent must be gathered from a consideration of: (a) all the language contained in the four corners of his will, (b) his scheme of distribution, (c) the circumstances surrounding him at the time he made his will, and (d) the existing facts. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68; In re Will of McDowell, 1970-NMSC-080, 81 N.M. 562, 469 P.2d 711; New Mexico Boys Ranch, Inc. v. Hanvey, 1982-NMSC-044, 97 N.M. 771, 643 P.2d 857.

Consider whole will. — The intent of the testators must be determined from the will itself when considered as a whole. In re Will of McDowell, 1970-NMSC-080, 81 N.M. 562, 469 P.2d 711; New Mexico Boys Ranch, Inc. v. Hanvey, 1982-NMSC-044, 97 N.M. 771, 643 P.2d 857.

Duty of court to ascertain testator's desire. In re Estate of Shadden, 1979-NMCA-078, 93 N.M. 274, 599 P.2d 1071, cert. denied, 93 N.M. 172, 598 P.2d 215, overruled on other grounds by Huntington Nat'l Bank v. Sproul, 1993-NMSC-051, 116 N.M. 254, 861 P.2d 935.

Strict construction of no-contest provision. — Since the function of the court is to effect the testator's intent to the greatest extent possible within the bounds of the law, to strictly construe no-contest provisions in the face of obvious indications of unresolved legal questions could result in the complete destruction of a testator's intent. In re Estate of Seymour, 1979-NMSC-069, 93 N.M. 328, 600 P.2d 274.

Ascertainment of intention from what words do express. — In determining the testator's intention, the purpose of the inquiry is to ascertain not what he meant to express, apart from the language used, but what the words he has used do express; not to add words to those in the will to contradict its language, or to take words away from those in the will, even though the court may believe that the actual disposition of the testator's property which results through changing circumstances, was not contemplated by him. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711.

Extrinsic evidence inadmissible if words in will not disputed. — Where there is no dispute as to what words are written in the will, extrinsic evidence cannot be received to show that the testator intended something outside of and independent of such written words to add words to those in the will, to contradict his language or to take words away from those in the will. Lamphear v. Alch, 1954-NMSC-113, 58 N.M. 796, 277 P.2d 299.

Use of technical rules or canons of construction. — Technical rules or canons of construction should be resorted to only if the language of the will is ambiguous, conflicting or the testator's intent is for any reason uncertain. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68; In re Estate of Bowles, 1988-NMCA-099, 107 N.M. 739, 764 P.2d 510.

When no-contest provisions ineffective to disinherit beneficiary. — No-contest provisions in wills are valid and enforceable in this state, but they are not effective to disinherit a beneficiary who has contested a will in good faith and with probable cause to believe that the will was invalid. In re Estate of Seymour, 1979-NMSC-069, 93 N.M. 328, 600 P.2d 274.

Donor's intention when giving determines whether gifts constitute ademption. — Whether or not gifts constitute an ademption of the legacy depends upon the donor's intention at the time the gifts were made. In re Estate of Williams, 1962-NMSC-149, 71 N.M. 39, 376 P.2d 3.

Where presumption of undue influence imposed. — Where the beneficiary of the transfer occupies a dominant position in the relationship, a position which is not the usual circumstance in such relationships, a presumption of undue influence may be imposed upon the transfer. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.

Gift by implication will be implied to effectuate testator's intent. In re Will of McDowell, 1970-NMSC-080, 81 N.M. 562, 469 P.2d 711.

Wills must be construed in harmony with public policy, including placing an adopted child on a level with natural children. Delaney v. First Nat'l Bank, 1963-NMSC-160, 73 N.M. 192, 386 P.2d 711.

Declared intention to make will does not revoke existing one. In re Estate of Williams, 1962-NMSC-149, 71 N.M. 39, 376 P.2d 3.

Residuary clause limitation to property described not to be defeated. — Where a will has been executed, there is a presumption that the testator intended to dispose of all his estate. Nevertheless, where the residuary clause by the plain language used demonstrates a purpose to limit its operations to the property therein described, the presumption will not be permitted to operate to defeat the intention of the testator as expressed. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68 (decided under former law).

Law reviews. — For article, "Intestate Succession and Wills Law: The New Probate Code," see 6 N.M.L. Rev. 25 (1975).

For annual survey of New Mexico law of estates and trusts, see 19 N.M.L. Rev. 669 (1990).

For comment, "Effectuating the Intent of the Testator: New Mexico Boys Ranch, Inc. v. Hanvey," see 14 N.M.L. Rev. 419 (1984).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills §§ 63, 64, 327, 384, 385, 387, 501, 762, 805, 807.

80 Am. Jur. 2d Wills §§ 1128, 1140, 1357, 1358.

Right of beneficiary to enforce contract between third persons to provide for him by will, 2 A.L.R. 1193, 33 A.L.R. 739, 73 A.L.R. 1395.

Remedies for breach of decedent's agreement to devise, bequeath, or leave property as compensation for services, 69 A.L.R. 14, 106 A.L.R. 742.

Admissibility of extrinsic evidence upon issue of testamentary intent, 21 A.L.R.2d 319.

Construction of contract not to make a will, 32 A.L.R.2d 370.

Remedies during promisor's lifetime for breach of agreement to give property at death, 8 A.L.R.3d 930.

Measure of damages for breach of contract to will property, 65 A.L.R.3d 632.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 A.L.R.4th 167.

What passes under terms "furniture" or "furnishings" in will, 21 A.L.R.4th 383.

Testamentary direction to devisee to pay stated sum of money to third party as creating charge or condition or as imposing personal liability on devisee for nonpayment, 54 A.L.R.4th 1098.

Wills: effect of gift or specified percentage or share of estate (or residuary estate) to include specific property found to be of a greater value than share bequeathed, 63 A.L.R.4th 1186.

What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 A.L.R.5th 590.

94 C.J.S. Wills § 111.

95 C.J.S. Wills §§ 587, 615, 672.

96 C.J.S. Wills §§ 756, 821.