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Will Was Not Revoked By Written, Signed “Revokation”

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JULY 19, 1999 VOLUME 7, NUMBER 3

Jose C. Martinez lived and died in Belen, New Mexico. Mr. Martinez was the father of ten children, and in 1984 he had signed a will leaving his real estate to two of the children.

In 1995, Mr. Martinez signed a document called “Revokation of Last Will and Testament of Jose Martinez.” This document indicated Mr. Martinez’ intention to revoke the “previous WILL which was exeucted approximately Twelves years ago.” The “Revokation” was also signed by one of his daughters, was notarized and apparently was filed with the Valencia, New Mexico, County Clerk.

Mr. Martinez died two years later. He had executed no new will since 1984, and so the question for the courts was whether the 1984 was still valid, or had been effectively revoked.

After the trial court found that the will had been revoked and that Mr. Martinez’ estate would be divided equally among his ten children, one of his daughters filed an appeal. Interestingly, the daughter who appealed would actually receive less under the will if it was admitted to probate; although she had been named as Personal Representative under the will, she was not one of the two children who would share Mr. Martinez’ real property, which apparently was the bulk of his estate.

New Mexico (like Arizona and 14 other states) has adopted the Uniform Probate Code. One provision of the Code sets out how a will may be revoked. As adopted in both New Mexico and Arizona, two methods of revocation are permitted. A will can be revoked either by a new will which expressly revokes the previous will (or which is so inconsistent with the previous will as to effectively revoke it), or by “performing a revocatory act on the will….” A “revocatory act” is defined to include “burning, tearing, canceling, obliterating or destroying the will or any part of it.”

Did Mr. Martinez revoke his will when he signed the “Revokation?” Assuming he was competent to do so, it may be assumed that his intention was to revoke the will. But, according to the New Mexico Court of Appeals, his failure to comply with the statute defeated his attempted revocation. The will was admitted to probate despite Mr. Martinez’ signature, and apparent intention, to the contrary. Estate of Martinez, June 8, 1999.

Arizona, since it shares the exact same language on revocation of wills from the Uniform Probate Code, should be expected to reach the same result. But the New Mexico opinion notes that the same result would probably have been reached even before the Uniform Probate Code’s adoption in that state, based on common-law principles regarding will revocation.

Some states, noted the New Mexico court, permit revocation of wills by a writing other than a new will. Usually, however, the revocation must comply with the same execution requirements as a will; in other words, a written revocation still would have to be witnessed by two people. Since Mr. Martinez’ “Revokation” did not meet that standard, it would not have been an effective document under New Mexico’s law even before the adoption of the Uniform Probate Code.

If Mr. Martinez was unable to locate the original of his old will, what could he have done to revoke it? Under the Uniform Probate Code and the law of many states, his only choice would have been to sign a new will which included revocation of the old document.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.