Will Revocation and Revival Requirements in New Mexico

At a glance

New Mexico follows a detailed Uniform Probate Code structure. The current definition of will includes a codicil and even a testamentary instrument whose only job is to revoke or revise another will. The same statute says that definition does not include a holographic will.

Requirements one by one

Governing law and scope

Sections 45-2-507 through -509 separate three questions: how revocation occurs, what ordinary changes of circumstances do, and when an earlier will or provision revives. Section 45-2-804 supplies the divorce and annulment rule. Because § 45-1-201(A)(57) defines a will to include a codicil, those rules apply to codicils without a second, codicil-only scheme.

Later will, codicil, or separate writing

Section 45-2-507(A) recognizes two written routes. A subsequent will may revoke the previous will or a part either expressly or by inconsistency. A different subsequent document must be executed in the manner provided for a witnessed or self-proved will under § 45-2-502 or -504 and must expressly revoke the earlier will or part.

That distinction matters. A formal later will can revoke by inconsistency. A separate revocation document cannot rely on inconsistency; it must both satisfy the statutory execution route and expressly state the revocation.

Physical act and directed act

The listed physical acts are burning, tearing, canceling, obliterating, and destroying the will or any part. The testator must perform the act with the intent and purpose of revocation. Another individual may act only in the testator's conscious presence and at the testator's direction.

New Mexico makes the required target unusually explicit: a burning, tearing, or cancellation qualifies even if it does not touch any words on the will. Section 45-2-507 states no distinct deletion, rendering-unreadable, or electronic-record-control method.

Partial revocation

All three routes can reach less than the entire will. The later will can revoke a part expressly or by inconsistency; the formal separate document can expressly revoke a part; and the physical act may target "the will or any part of it."

The later-will presumptions reinforce that partial operation. If the new will does not dispose of the entire estate, it is presumed to supplement rather than replace the old one. Unless clear and convincing evidence rebuts that presumption, both wills remain operative except where they conflict.

Intent, proof, and presumptions

A physical act alone is not enough; § 45-2-507(A)(3) requires revocatory intent and purpose. For a later will that does not expressly revoke, subsections (B) through (D) use the scope of the new disposition as the starting point:

• A complete estate disposition is presumed to replace the previous will. Unless clear and convincing evidence rebuts the presumption, the previous will is wholly revoked and only the later will operates at death.
• An incomplete estate disposition is presumed to supplement. Unless clear and convincing evidence rebuts it, revocation extends only to inconsistencies and both instruments otherwise operate.

The current statutory sections do not add a separate presumption merely because the original is missing or damaged.

Divorce, annulment, remarriage, and other changes

Section 45-2-804 is broader than a former-spouse gift rule. Unless the governing instrument, a court order, or a marital-estate contract provides otherwise, divorce or annulment revokes revocable property dispositions and appointments, powers of appointment, and fiduciary nominations for both the former spouse and relatives of the former spouse who are no longer related to the testator.

The affected provisions operate as if those people disclaimed, or—when a fiduciary nomination is involved—as if they died immediately before divorce or annulment. Remarriage to the former spouse or nullification of the divorce or annulment revives provisions revoked solely by this section.

The definition of divorce includes the specified completed proceeding that terminates all marital property rights; a separation decree that does not terminate spouse status does not qualify. Sections 45-2-508 and -804(F) otherwise reject revocation by changed circumstances, apart from § 45-2-803's separate homicide-forfeiture rule. Marriage, birth, or adoption therefore does not itself revoke the will under these sections.

Revival after revoking the later will

New Mexico uses three different defaults in § 45-2-509:

1. If a later will wholly revoked the earlier will and the later will is then revoked by the referenced revocatory act, the earlier will stays revoked unless the circumstances or the testator's contemporary or later written declarations show an intent that it take effect as executed.
2. If the later will only partly revoked the earlier will, the revoked part instead revives unless those circumstances or declarations show that the testator did not want it to take effect.
3. If a third will revokes the later will, the earlier will or provision remains revoked except to the extent the third will's terms show revival intent.

There is a current-text trap here. Subsections (A) and (B) call the event a "revocatory act" but cross-reference § 45-2-507(A)(2). In the current § 45-2-507, paragraph (A)(2) is the formal subsequent-document route and paragraph (A)(3) is the paragraph that defines physical revocatory acts. This page preserves that facial mismatch rather than rewriting the citation.

Reexecution, republication, and codicil effect

The Act provides no separate Florida-style rule that revoking a codicil presumptively restores everything it changed, and it does not make formal reexecution the exclusive revival route. Section 45-2-509 instead uses the circumstances, written declarations, or the terms of a third will to determine revival under its three defaults.

A formally reexecuted instrument can operate as a subsequent will under §§ 45-2-502 and -507. Because the statutory definition includes codicils, a later codicil follows the same written-revocation and revival rules.

What trips people up

• An incomplete later will does not presumptively wipe out the first. It is presumed supplementary, with both instruments operative outside their inconsistencies.
• A physical mark need not touch text. Burning, tearing, or cancellation can qualify even when no words are affected, but intent and purpose are still required.
• The revival default flips for whole and partial revocation. The wholly revoked earlier will stays revoked unless revival intent appears; a partly revoked provision revives unless contrary intent appears.
• Divorce reaches former-spouse relatives. The rule covers dispositions, powers, and fiduciary nominations, subject to the statute's exceptions.
• The current revival cross-reference is internally inconsistent. Do not silently substitute paragraph (A)(3) when quoting § 45-2-509.

Common questions

Can a separate signed note revoke a New Mexico will?

Not merely because it is signed. Section 45-2-507(A)(2) requires the document to be executed through § 45-2-502's witnessed route or § 45-2-504's self-proved route and to expressly revoke the earlier will or part.

May another person tear or destroy the will?

Yes, but only at the testator's direction and in the testator's conscious presence, with the required revocatory intent and purpose.

Does destroying the later will automatically restore the earlier one?

No. The answer depends on whether the later will wholly or partly revoked the earlier one and on the intent evidence specified in § 45-2-509.

Does remarriage restore provisions revoked by divorce?

Yes, when the provisions were revoked solely by § 45-2-804. Nullification of the divorce or annulment has the same statutory effect.

Statutes and sources

• NMSA 1978 § 45-1-201(A)(57) — will definition, including codicils and revocation-only testamentary instruments. Official Chapter 45 PDF (accessed 2026-08-01).
• NMSA 1978 §§ 45-2-502 and -504 — witnessed and self-proved execution routes incorporated by the separate revocation-document rule. Official Chapter 45 PDF (accessed 2026-08-01).
• NMSA 1978 § 45-2-507 — whole and partial revocation by later will, formal document, or act; directed acts; later-will presumptions and evidence standard. Official Chapter 45 PDF (accessed 2026-08-01).
• NMSA 1978 §§ 45-2-508 and -509 — no revocation by ordinary changed circumstances and the three revival rules. Official Chapter 45 PDF (accessed 2026-08-01).
• NMSA 1978 § 45-2-804 — divorce, annulment, former-spouse-relative revocation, construction, exceptions, remarriage revival, and other-change rule. Official Chapter 45 PDF (accessed 2026-08-01).