If demanded, in the manner provided by the Rules of Civil Procedure, a party is entitled to a trial by jury in a formal testacy proceeding and in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.
History: 1953 Comp., § 32A-1-306, enacted by Laws 1975, ch. 257, § 1-306.
ANNOTATIONSCross references. — For Rules of Civil Procedure in the District Courts, see 1-001 NMRA.
For demand for jury trial, see 1-038 NMRA.
Will contest generally. — One is entitled to demand a jury trial as of right when contesting a will. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489.
Jury trial demand subsequent to start of informal proceedings. — Before the informal testacy proceeding could continue with administration, the validity of decedent's will had to be determined, which required a hearing before a trier of the fact, and the party who petitioned for formal probate of the will was entitled to the jury trial he demanded. In re Estate of Ruther, 1981-NMCA-078, 96 N.M. 462, 631 P.2d 1330.
Ambiguity in will. — Since there was no ambiguity in joint will executed by decedent and his wife, contestants were not entitled to a jury trial. Naranjo v. Armijo, 2001-NMSC-027, 130 N.M. 714, 31 P.3d 372.
Timeliness of jury demand. — In a probate proceeding, the jury demand may be filed not later than ten days after service of the objections; provided that such date is a reasonable amount of time prior to the date set for hearing and the district court does not find that the jury demand was filed solely for purposes of delay or other improper purpose. Morlock v. Lozoya, 2001-NMCA-030, 130 N.M. 258, 23 P.3d 933.
Untimely jury demand. — A party in a formal testacy proceeding has a right to a jury trial and the court has the discretion to allow a jury trial if the jury demand is not timely. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489, cert. quashed, 89 N.M. 51, 644 P.2d 1040 (1982).
Waiver of twelve member jury. — The right to a jury of twelve members is waived if a jury demand is not timely filed. In re Will of Ferrill, 1981-NMCA-074, 97 N.M. 383, 640 P.2d 489, cert. quashed, 89 N.M. 51, 644 P.2d 1040 (1982).
Law reviews. — For annual survey of New Mexico law relating to estates and trusts, see 13 N.M.L. Rev. 395 (1983).
For note, "Undue Influence in Wills - Evidence - Testators' Position Changes After In re Will of Ferrill," see 13 N.M.L. Rev. 753 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 80 Am. Jur. 2d Wills § 1026.
50 C.J.S. Juries §§ 13, 56.