WILL CONTESTS Commencement of Will Contest Wills Are Typically Challenged by Contestants on the Basis That the Decedent Lacked T

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WILL CONTESTS

Commencement of Will Contest

Wills are typically challenged by contestants on the basis that the decedent lacked testamentary capacity and/or the Will was a product of undue influence. Wills, however, may also be set aside on the basis of mistake, fraud or forgery. If pleading “mistake,” it must be proven that the decedent was induced by material misrepresentations or fraud to change his Will (i.e., but for the misinformation the Will would not have been changed). For example, one sibling advises his father that his brother is deceased when in fact he is alive and living overseas. The decedent, in reliance upon his son’s misinformation, changes his Will to exclude his son living overseas.

Will contests may be initiated either by filing a Petition to the court requesting the determination of intestacy status of the decedent with respect to a Will/Trust that has been probated informally, or by filing for formal probate of an earlier Will or Codicil.

Statute of Limitations to Contest Wills

Generally, under the Colorado Probate Code, the time imposed to file a Will contest is three years from the decedent’s date of death or upon notice of a Petition for Formal Probate of the Will. Upon the filing of an objection to a Will which has been admitted through informal probate, the matter is automatically placed in formal probate. The filing of competing petitions should preclude the probate registrar from taking any action and requires an evidentiary hearing before the district court judge or jury.

Fees and Costs of Proponent and Contestant

As long as the contest is defended in good faith, the personal representative is permitted to recover his or her attorneys fees and costs for defending the Will. Similarly, a contestant who prevails may be reimbursed his or her attorneys fees and costs from the estate. In other words, the contestant must finance the litigation out of his or her own personal funds and later seek reimbursement from the estate if the contestant prevails.

No-Contest/Penalty Clauses in Wills

The Decedent’s Will may contain a penalty or no contest clause. These clauses are enforceable if the contestant does not have probable cause to challenge the Will. “Probable cause” requires a finding of determination of whether a reasonable person properly informed and advised would have concluded that the Will contest would be successful.

Challenges to Execution

The current Colorado Probate Code requires that a formal typed Will, as opposed to a handwritten holographic Will, be signed by the testator, plus a notary or two witnesses either prior to or after the decedent’s death, each of whom must sign within a reasonable time after he or she witnessed the testator sign his Will.

If the contestant claims some defect in the execution of the Will or Codicil, that claim must be specifically plead in the objection. Most Wills are self-proved. A self-proved Will is one that has an attestation clause containing statutory language, together with sworn declarations to a notary by the witnesses as to the statutory compliance of the execution ceremony. The document is then notarized. On account of the notarization under the Colorado Rules of Evidence, the Will is received into evidence without further proof. The admission of the self-proved Will into

evidence will provide prima facie evidence of due execution, and shifts the burden to the contestant to go forward on claims of lack of testamentary capacity and undue influence.

Trusts are not self-proved and do not require notarization or witnesses.

Burdens of Proof – Contested Cases

The proponents of the Will have the initial burden of due execution, venue, and proof of death. The burden is on the contestant to show lack of testamentary capacity, fraud, undue influence, duress, mistake or revocation. The burden of proof as to both testamentary capacity and undue influence is by a preponderance of the evidence.

Testamentary Capacity

Testamentary capacity requires that a testator must have at the time of signing the Will/Trust (hereafter “Will”) the ability to understand: (1) that he or she is making a Will; (2) the nature and extent of the property he or she owns; (3) how that property will be distributed under the Will; (4) that the Will distributes the property as he or she wishes; and (5) those persons who would normally receive his or her property. CJI-Civ. 34:11 (CLE ed. 2017). The fact that the testator may not be able to recall all of his or her property in detail at the time of the signing of the Will does not render the Will defective. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Testamentary capacity is a very low standard. The Colorado Supreme Court upheld the Court of Appeals and the Denver Probate Court in In Re Estate of Breeden, 992 P.2d 1167 (Colo. 2000). In that case, the Court addressed the standards for testamentary capacity as well as whether the Will was executed by the decedent while he was suffering from an insane delusion. Breeden, at the time he prepared his handwritten Will, was drinking heavily and was under the influence of cocaine. His holographic Will left his multi-million dollar estate to his girlfriend. After he signed his Will, he shot his dog and then shot himself.

Breeden’s parents challenged the Will on the basis of lack of testamentary capacity, as well as a claim that their son was suffering from an insane delusion. Judge Stewart (Judge in the Denver Probate Court) upheld the Will, finding that Breeden had testamentary capacity. In addition, she found that Breeden, at the time he prepared his Will was suffering from delusional thoughts, but those thoughts did not impact his Will. The Probate Court noted, that although Breeden was extremely paranoid believing he was under surveillance by the DEA through bugging devices in his house and car, those paranoid delusions did not impact his Will.

The Colorado Supreme Court, upholding the Probate Court, agreed that there was no causal relationship between Breeden’s paranoid delusions and the holographic document. Since 2002, the Breeden case has been the bench mark for the above five factor test regarding testamentary capacity, as well as the test for insane delusion. It has yet to be reversed.

The next important case is In re Estate of Romero, where the decedent was suffering from mental illness. At trial, there was expert psychiatric testimony that established a diagnosis of schizophrenia, but the expert was unable to establish a causal relationship between the decedent’s auditory hallucinations and his testamentary capacity. The Denver Probate Court Judge ignored the contestant’s forensic expert and relied instead on family members, friends, care providers, treating physicians and the drafting attorney who all had direct contact with the decedent shortly before his death. The important point of Romero is that the Colorado Court of Appeals recognized that the trial court, as finder of fact, is free to place more weight on the testimony of those who have had actual contact with the decedent than paid experts hired by the contestant.

Testamentary capacity is substantive question of fact. The issue is determined by the trier of fact, (i.e. the judge or jury), who may consider both direct and circumstantial evidence indicative of the testator’s mental status and determine how reasonable and natural the disposition was relative to the testator’s situation. Many times, the decedent’s prior estate plan will be extremely important in explaining why certain heirs were disinherited.

Undue Influence

Undue influence is defined as words, conduct, or both, which at the time of making of the Will/Trust (hereafter “Will”): (1) deprive the person making the Will of his or her free choice, and (2) cause the person making the Will to make the Will or to make one or more provisions differently than he or she otherwise would have. CJI-Civ. 34:14 (CLE ed. 2017). Undue influence is proved if the contestant can establish the following facts: (1) a person unquestionably susceptible to undue influence; (2) the opportunity in a third person to exercise undue influence and to effect a wrongful purpose; (3) a disposition to influence unduly for the purpose of procuring an improper benefit and; (4) a result appearing to be the effect of the supposed undue influence.

Like testamentary capacity, undue influence is typically proved through circumstantial evidence and Colorado Courts have been liberal in admitting evidence of all circumstance that might tend, in conjunction with other evidence, to show undue influence. In re estate of Koch, the Colorado Supreme Court found that the charge of undue influence is substantially that of fraud and it can seldom be shown by direct or positive evidence. While it is true that undue influence must be

proved and not presumed, it can be proved by evidence and circumstances that, by themselves, may have little significance but when taken together create a situation under which it may be reasonable or natural to infer undue influence.

Undue influence cannot be inferred by motive and opportunity alone. There must be some evidence, either direct or circumstantial, to show that undue influence not only existed but also influenced the making of the Will.

Presumptions of Undue Influence

When an heir or devisee at the time of the preparation and execution of a Will was in a confidential or fiduciary relationship with the decedent and was actively involved in the execution or preparation of the Will, the law presumes the Will was procured by undue influence. This presumption, however, disappears where the proponent can produce sufficient evidence to overcome the presumption. If the proponent can rebut the presumption, then the contestant does not get to present that instruction to the jury. CJI-Civ. 34:16 (CLE ed. 2017).

A “fiduciary relationship” exists whenever a person is in the position of attorney, guardian, trustee, executor, agent under power of attorney, conservator, personal representative, partner, joint venturer, etc. and because of that position has legal power to affect the interest of another that has been entrusted to him. Such person is under a duty to deal with the interest of another with the upmost good faith and solely for the benefit of the other. CJI-Civ. 26:2 (CLE ed. 2017). Colorado Courts have generally held that where beneficiaries are also fiduciaries, the temptation for overreaching is great.

A “confidential relationship” exists whenever one person gains the trust and confidence of another person by acting or pretending to act for the benefit of or in the interest of the other and as result, is put in a position to exercise influence and control over the other.

It had been held in numerous cases that where undue influence is alleged, the mere existence of motive and opportunity does not give rise to an inference that undue influence was exerted. In fact, influence gained by reason of love, affection, kindness, or appeals to such feelings is not undue influence. CJI-Civ. 34:15 (CLE ed. 2017). A decedent is generally free to devise his or her estate any way he or she chooses, including to the exclusion of relatives. The judge or jury, as trier of fact, may take into consideration the unnaturalness of the provisions of the Will as a factor, but may not decide against the Will merely because it does not contain provisions that he or she would consider more appropriate or equitable.

Evidence

Colorado Dead Man’s Statute

Under the Colorado Dead Man’s Statute, parties and persons in interest with parties (i.e. spouses and children) are generally viewed as incompetent to testify as to oral statements of the decedent. However, corroborating evidence of an independent and trustworthy nature can be used to support testimony of parties and persons in interest with a party, who are then permitted to testify as to oral statements of the decedent. Corroborative evidence, in its commonly accepted meaning, connotes evidence independent of or supplementary to the fact and tending to strengthen or confirm that fact.

The current Dead Man’s Statute only affects the admissibility of the witness’s testimony regarding oral statement of the decedent. It does not prohibit the introduction of written communications with or by the decedent or other writings or testimony regarding non-verbal conduct. Writings of the decedent can be used to corroborate testimony by witnesses who would otherwise be barred from testifying. For example, letters from the decedent to a spouse or child evidencing the decedent’s intent to omit or include a family member could be used as foundation to permit testimony from a witness who might otherwise be incompetent to testify.

The Dead Man’s Statute in 2002 was broadened in scope to potentially disqualify spouses and other family members, agents, corporate officers and partners who would stand to gain directly or indirectly from the outcome of the Will or Trust contest. Persons in interest with a party are defined as a person having substantial financial interest in the outcome of the civil litigation or any other interest that makes their testimony standing alone untrustworthy.

I have always considered the two most important witnesses in a Will contest to be the drafting attorney and treating doctor. The treating doctor and the drafting attorney are neutral professional witnesses in that they are not parties or persons in interest with a party and, therefore, not barred by the Dead Man’s Statute. The fact that a drafting attorney earns a fee in representing the personal representative as proponent of the Will is not sufficient to create a substantial financial interest in the outcome of the litigation.

Discovery in Will Contest Litigation

In Will contest litigation, the most relevant and determinative testimony is that of the estate planning attorney and the physician treating the decedent near or at the time the estate planning documents were executed. In Re Estate of Romero. Often Will contest litigation may involve

procedural disputes involving discovery of the decedent’s medical records and his/her attorney’s estate planning file.

Generally, an attorney may not be examined without the consent of his/her client as to communications with the client or advice given in the course of the employment. There have been recent ethical opinions produced by the Colorado Bar Association Ethics Committee that suggest that a lawyer’s ethical duties of confidentiality survive the client’s death. These opinions run contrary to the Colorado Supreme Court opinion of Wesp v. Everson, as well as earlier Colorado case law which finds that there is an implied testamentary exception to the attorney- client privilege concerning a drafting attorney’s preparation and execution of a client’s Will.

Similarly, there is case law that suggests the doctor-patient privilege is also impliedly or constructively waived when the patient dies and there are controversies involving his or her physical or mental capacity and testamentary intent. It is well established that evidence as to the decedent’s condition of health is discoverable in Will contest litigation where lack of testamentary capacity or susceptibility of undue influence has been alleged. In such cases, the personal representative for the estate should willingly provide, through appropriate HIPAA releases, access to the decedent’s medical records as a matter of discovery.

Frequently, when the personal representative is uncooperative, the contestants are required to persuade the Court to appoint a Public Administrator, as Special Administrator, for purposes of executing necessary releases for the estate planning file, as well as the decedent’s medical records. This can many times be the battle before the war in terms in gaining important relevant documents through discovery.