## Facts

- George Gushwa executed a formal will in June 2000 while his wife, Zane Gushwa, was hospitalized.
- The will placed Gushwa’s separate property in a trust for Zane’s support during her life, with the remainder to his nieces and nephews; Zane received no permanent distribution.
- Gushwa named his niece’s husband, Ted Dale, as trustee and gave Dale possession of the original will for safekeeping; the Dales were not beneficiaries.
- In early 2001, Gushwa sought to revoke the 2000 will and retained new counsel.
- Counsel drafted a document titled “Revocation of Missing Will(s),” and Gushwa wrote “Revoked” on photocopied pages of the will and attached them to the revocation document; he later wrote “Revoked” on each page of a full photocopy.
- Dale retained the original will; the parties disputed whether Gushwa requested its return and whether Dale refused.
- After Gushwa’s death, Zane claimed the will had been revoked and that he died intestate; Wanda Hunt, a niece and residuary beneficiary, asserted the will remained valid.
- Zane also alleged Dale fraudulently withheld the original will, preventing effective revocation.

## Issues

1. Whether the “Revocation of Missing Will(s)” qualified as a “subsequent will” that revoked the 2000 will under NMSA 1978, § 45-2-507(A).
2. Whether writing “Revoked” on photocopies constituted a valid “revocatory act on the will” under § 45-2-507(A).
3. Whether the fraud allegation regarding retention of the original will raised issues requiring adjudication and could support a constructive trust.

## Decision

- The Supreme Court affirmed summary judgment that the 2000 will was not revoked by the “Revocation of Missing Will(s).”
- The Court held the revocation document was not testamentary in nature and therefore was not a “subsequent will” within § 45-2-507(A).
- The Court affirmed that marking “Revoked” on photocopies was not a valid revocatory act because the statute requires the act be performed on the original will or a duplicate original, not on photocopies.
- The Court reversed in part and remanded for the district court to adjudicate the remaining fraud allegation and consider whether a constructive trust was appropriate.

## Legal Principles

- Revocation of a will is governed by the exclusive methods in § 45-2-507(A): (1) execution of a subsequent will, or (2) performance of a revocatory act on the will.
- A document expressing intent to revoke is ineffective unless it is itself testamentary and qualifies as a subsequent will (or equivalent testamentary instrument).
- A “revocatory act on the will” must be performed on the legally operative instrument (original or duplicate original); alterations to photocopies do not revoke.
- Clear intent to revoke does not substitute for compliance with statutory revocation formalities.
- Even when a will remains valid as a matter of probate law, proven fraud in the testamentary process may warrant equitable relief, including a constructive trust.

## Conclusion

The court held that neither a non-testamentary “Revocation of Missing Will(s)” nor “Revoked” notations on photocopies satisfied New Mexico’s statutory requirements for will revocation, leaving the 2000 will operative, while allowing further proceedings on an alleged fraud claim and possible constructive-trust relief.


In re Estate of Gushwa, 2008-NMSC-064, 145 N.M. 286, 197 P.3d 1