A. If a petition in a formal testacy proceeding is unopposed, the district court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 3-409 [45-3-409 NMSA 1978] have been met, or conduct a hearing in open court and require proof of the matters necessary to support the order requested.
B. If evidence concerning execution of a will which is not self-proved is necessary in uncontested cases, the affidavit or testimony of at least one of the attesting witnesses is required if he is within New Mexico, competent and able to testify. Otherwise, due execution of a will may be proved by other evidence.
C. If the will is self-proved in an uncontested case, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed, subject to rebuttal without the testimony of any witness, upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
History: 1953 Comp., § 32A-3-405, enacted by Laws 1975, ch. 257, § 3-405.
Official comments. — See Commissioners on Uniform State Law official comment to 3-405 UPC.
Cross references. — For general provisions concerning fraud, see 45-1-106 NMSA 1978.
Use of circumstantial evidence to show undue influence. — Where the only evidence is circumstantial, such evidence may be used to show the existence of undue influence. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.
Existence of undue influence determined from circumstances of case. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 79 Am. Jur. 2d Wills § 842; 80 Am. Jur. 2d Wills § 1008.
95 C.J.S. Wills §§ 392, 393, 411, 422.
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