Thursday, February 26, 2009
Unable to secure the original copy of his will, the testator on advice of counsel signed before witnesses and had notarized a document stating that he revoked his will. He also wrote “revoked” on each page of a photocopy of the signed will.
The court in Gushwa v. Hunt, 197 P.3d 1 (N.M. 2008), held that the will was not revoked. The New Mexico revocation statute does not allow for revocation by a writing other than a will. Revocatory acts performed on a photocopy do not revoke the will.
The court remanded for consideration of whether the original will was wrongly withheld from the testator. If that were the case, the court may impose a constructive trust on the beneficiaries of the will in favor of the heirs.