A. In an informal proceeding for original probate of a will, the probate or the district court shall determine whether:

(1) the application is complete;

(2) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;

(3) the applicant appears from the application to be an interested person as defined in Paragraph (2) [(23)] of Subsection A of Section 45-1-201 NMSA 1978;

(4) on the basis of the statements in the application, venue is proper;

(5) an original, duly executed and apparently unrevoked will is in the possession of the probate or the district court;

(6) any notice required by Section 45-3-204 NMSA 1978 has been given; and

(7) it appears from the application that the time limit for original probate has not expired.

B. The application shall be denied if it indicates that a personal representative has been appointed in another county of New Mexico or, except as provided in Subsection D of this section, if it appears that this or another will of the decedent has been the subject of a previous informal probate order.

C. A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 45-2-502 or 45-2-506 NMSA 1978 have been met shall be probated without further proof. In other cases, the probate or the district court may presume execution if the will appears to have been properly executed, or it may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.

D. Informal probate of a will which has been previously probated in another state or foreign country may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the order or statement probating it from the office or court where it was first probated.

E. A will from a place which does not provide for probate of a will after death and which is not eligible for probate under Subsection A of this section, may be probated in New Mexico upon receipt by the probate or the district court of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.

History: 1953 Comp., § 32A-3-303, enacted by Laws 1975, ch. 257, § 3-303; 1978, ch. 159, § 6.

Official comments. — See Commissioners on Uniform State Law official comment to 3-303 UPC.

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

The reference in Subsection A(3) of this section seemingly should be to Paragraph (23), and not Paragraph (2), of Subsection A of 45-1-201 NMSA 1978.

Cross references. — For venue of decedent's estates, see 45-1-303, 45-3-201 NMSA 1978.

For limitations for probate proceedings, see 45-3-108 NMSA 1978.

For venue of protective proceedings, see 45-5-403 NMSA 1978.

Claim for fraud. — 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.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 841; 80 Am. Jur. 2d Wills § 1008.

95 C.J.S. Wills §§ 383, 484, 486.