OPINI
{1} This сase poses the question of whether a prior valid will may be revoked by the decedent’s act of signing a nontestamentary written instrument stating that it is his intent tо revoke his prior will. For the reasons discussed herein, we conclude that the purported revocation was invalid, and thus, reverse.
FACTS AND PROCEDURAL POSTURE
'{2} On June 6, 1984, Jose C. Martinez (the decedent) executed a will appointing his daughter, Cristina Sanchez (Appellant), as his personal representative, and directing, among other things, that certain realty owned by him and located in Valencia County, New Mexico, be devised to two of his children, Juan Martinez and Consuelo Martinez.
{3} On January 23, 1995, prior to his death, the decedent executed a document entitled “Revokation [sic] of Last Will and Testament of Jose Martinez.” The instrument recited, in applicable part:
I, the undersigned JOSE MARTINEZ, a legal resident of the City of Los Lunas, County of Valencia, State of New Mexico, bеing of very sound and disposing mind and memory, and not under any restraint or undue influence of any kind, do hereby make, publish and declare hereby revoking a previous WILL which was executed approximately _Twelves [sic]_ years ago, which I had named my daughter, Cristina Sanchez as Personal Representative, where as [sic] this said aforemention [sic] Last Will and Testament I am revoking on this date of January 23,1995. Aso there was [sic] additional names; Consuelo Martinez and Juan Martinez. Witness my hand and seal on this 23rd. day of January 1995, _(SEAL)
Jose Martinez
STATE OF NEW MEXICO
COUNTY OF BERNALILLO
The foregoing instrument was acknowledged before me this 28rd. day of JANUARY, 1995, by Jose C. Martinez by his mark X
My Commission Expires:
(Seal) 3/25/96
s/Lou Gurule
Notary Public
{4} The instrument borе an illegible signature which the trial court found to be that of the decedent. The instrument also contained the signature of Consuelo Martinez and the recording stamp of the county clerk of Valencia County.
{5} Ater the death of the decedent on February 19, 1997, Appellant filed a petition to рrobate the decedent’s will. The petition recited that the decedent left as his survivors, ten children, including Appellant. Five of the decedent’s сhildren, Bruno Martinez, Consuelo Martinez, Salvador Martinez, Estella Parra, and Juan Martinez, appeared pro se at the hearing on the petition to admit the will to probate and contested the validity of the will. At the conclusion of the hearing, the trial court ruled that the will was revoked by the deсedent by his execution of the instrument signed by him on January 23,1995. Based upon this determination, the trial court found that the decedent had died intestate.
DISCUSSION
{6} Appellant argues that the trial court erred in finding that the decedent’s will was properly revoked because the instrument which purported to effect thе revocation was not in conformity with the statutory provisions governing the permissible methods for revoking a will as set out in the Uniform Probate Code, and аdditionally, that the written document which purported to revoke the decedent’s will was not executed with the necessary formality required by law.
{7} The fаcts underlying this appeal are essentially uncontested, and consequently, we review the record to determine whether the trial court correctly applied the law to the facts. See Amica Mut. Ins. Co. v. Maloney,
{8} NMSA 1978, § 45-2-507 (1993) sets out the methods by which a will may be revoked. This section provides, in pertinent part:
A. A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2) by performing a revocatory aсt on the will if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph “revocatory aсt on the will” includes burning, tearing, canceling, obliterating or destroying the will or any part of it. A burning, tearing or canceling is a “revocatory act on the will”, whether or not the burn, tear or cancellation touched any of the words on the will.
(Emphasis added.)
{9} Two prior decisions of our Supreme Court, Albuquerque National Bank v. Johnson,
{10} Although both Albuquerque National Bаnk and Perschbacher predate the enactment of the present Probate Code and Section 45-2-507(A), set out above, we see nothing in the current statutory provisions that modifies the holding of these cases.
{11} As observed in 22 A.L.R.3d § 2[a], at 1351:
Generally, the question whether a will can be revoked by a writing not testamentary in chаracter depends upon the provisions of the governing statute. In most states, the statute relating to wills usually provides that a will may not be revoked оtherwise than by a subsequent will or codicil or “some other writing of the testator declaring such revocation,” executed with the same formalities rеquired of wills.... But where the statute omits the clause “some other writing” or its equivalent, and simply states that no will shall be revoked except by some other “will, tеstament or codicil in writing, declaring the same,” it has been held that a will may not be revoked by a writing not testamentary in character.
Here, the trial court erred in concluding that the decedent revoked his will, and did so because this instrument purporting to do so does not satisfy the will requirement of Section 45-2-507(A). In particular, the decedent’s later instrument is not a will because it is not testamentary in nature. See NMSA 1978, § 45-l-201(A)(53) (1995) (a will is “any testamentary instrument” that “revokes or rеvises another will,” among other things). “A testamentary instrument is one that operates only upon and by reason of the death of the maker.” Vigil v. Sandoval,
{12} Sеction 45-2-507 of the Probate Code specifies the exclusive means of revocation of a prior valid will. That section contains no provision that permits a testator to revoke a will by execution of a nontestamentary document. Moreover, even if the
CONCLUSION
{13} The order declaring the decedent’s prior will to be invalid and declaring the decedent tо have died intestate is reversed and the cause is remanded to the trial court for further proceedings consistent herewith. Appellant is awarded her costs on appeal.
{14} IT IS SO ORDERED.