N E W S L E T T E R

July 2016

Risk of a Successful Contest of your Superior after a handwriting NEWS OF THE FIRM Client’s Will, Revocable Trust and expert made out the words of the Other Non- Transfers, and will from indentations left on the We are very pleased to announce that Keith spoke on the topic of Insurance paper by the empty pen. Gary T. Potter is joining our firm Coverage Issues in , Trust and on July 1, 2016. Gary’s practice will Fiduciary Litigation. • One of the wills on file at the continue to focus on , Surrogate Court in the District of Probate and Trust Administration. Kerrobert, Canada, was written on Before beginning his career in the FUNKY HOLOGRAPHIC a fender cut from a farm tractor. private practice of , Gary served as WILLS The scratched the will into a Deputy Colorado Attorney General, the fender after a disc apparatus Tax Division; as a Vice Since the beginning attached to the tractor trapped President and Trust Officer with of recorded history, his legs, which were bleeding First National Bank of Denver Trust people have created profusely. The farmer used his Department; and as Vice President plans for testamen- pocket knife to scratch these words Marketing of Integrated Resources. tary disposition of into the fender “In case I die in this Gary has served on numerous boards their . The mess, I leave all to my wife CECIL and in leadership positions throughout drafting and execu- GEORGE HARRIS.” Harris was his career including the Denver Trust tion of wills were found nine hours after the accident Officers Association, Teachers Award codified and formalized in the and was rushed to the hospital , Craig Hospital Board of Wills of 1540, the Statutes of where he died shortly thereafter. A and the Colorado Golf Association, to (1677) and the Wills Act of few days later, a man investigating name a few. 1837. The formalities demanded by the accident site noticed the those are still observed in the fender. The fender was removed Herb Tucker and Keith Lapuyade current law of wills. Nonetheless, and admitted to probate as the recently participated as faculty and cognizant of the fact that some wills decedent’s last . speakers at the 36th Annual Estate are made in haste and in the testator’s Planning Retreat in Snowmass, own handwriting, the law of wills • During World War I, a British Colorado. Herb spoke on the topic historically has included provisions soldier wrote a “trench will” on of Protecting Against Contests - for validation of handwritten (holo- the back of a photograph of his What You Can do to Minimize the graphic) wills. Yorkshire sweetheart. He wrote, “In the event of my , I leave Not all wills are drafted by attorneys all my effects and money to this IN THIS ISSUE or signed before qualified . young lady.” After he was killed Consider these examples of unusual in the line of duty, the photo was • FUNKY HOLOGRAPHIC situations in which holographic wills found and admitted to probate. WILLS were written. • COLORADO’S POTENTIAL • Unable to locate a blank sheet of NEW : THE COLORADO END OF LIFE • Beth A. Baer, who was blind, wrote paper, George Hazeltine of Los OPTIONS ACT her will with a pen that had run Angeles dictated his will and had • 2016 COLORADO LAW out of ink. The blank paper was one of his two in-home nurses write CHANGES filed for probate in Los Angeles it on her white petticoat. He left be dated. The Colorado Court of All states that recognize holographic FUNKY HOLOGRAPHIC Appeals held In re Estate of Grobman that wills require that the testator’s signature WILLS (CONT’D.) there is no statutory requirement that be handwritten. Although the trend the be dated. Most of most and the bulk of his considerable estate states that have adopted the Uniform throughout the United States is toward to a grand-niece and bequeathed Probate Code, such as Colorado, greater flexibility in accepting a variety $10,000 apiece to the nurses. He permit both intrinsic (on of documents as holographic wills, signed the garment with an “X” the face of the will) and extrinsic the testator’s signature remains an being too weak to write his name and evidence (not contained on the face essential requirement. The signature the two nurses signed as witnesses. of the will) of the testator’s signatory represents that The petticoat, as well as an earlier intent and testamentary intent. The the testator signed the holographic formal will executed by Hazeltine starting place for examining intrinsic will with the intent to authenticate the at a bank, were offered for probate. evidence should be an evaluation of document. Some states require that The found the petticoat will to the completeness of the holographic the testator’s signature be at the end be genuine, but the ruled that document. For example, whether of the will. However, the vast majority will bequests to the nurses were null it included: (1) a residuary clause; of states, including Colorado, do not and void because the nurses were (2) a clause appointing a personal require the testator to sign at any also witnesses to the will. representative; (3) a place at the end particular location on the document. for the testator’s signature; (4) a place In 1973, Colorado adopted the for witnesses’ signatures (although not Holographic will cases, besides . The Uniform necessary); (5) a space for notarization involving documents written in the Probate Code contains specific statutes (also not necessary). The words that testator’s hand on paper (or whatever permitting holographic wills. The precede as well as follow the testator’s surface may be convenient), often original Uniform Probate Code name also can constitute intrinsic involve hybrid wills. Hybrid wills are required the “material provisions” evidence. those in which some portions of the of the holographic will to be in the document are handwritten, while handwriting of the testator. In 1995, The examination of extrinsic evidence other portions consist of text that is Colorado adopted the Uniform would include prior wills of the computer-generated or preprinted Probate Code II which amended the decedent. Such issues might include on a form. Many “do it yourself ” holographic statute to require only the an examination of whether: (1) the products for the preparation of wills are “material portions” of the document testator had a history of writing readily available to consumers in the be in the handwriting of the testator. holographic wills or whether prior wills form of computer software, Internet The purpose of changing “material were typed and prepared by attorneys; downloads, or office supply store kits. provisions” to “material portions” was (2) prior drafts of handwritten wills Some will kit forms contemplate the to leave no doubt about the validity of were mailed to members; (3) the testator will the form to prepare a the will in which immaterial parts of testator made statements to witnesses holographic will; other form kits may the provisions – such as “I give, devise, regarding the holographic document direct that the will be witnessed and/or and bequeath” – are not in the testator’s before and at the time the document notarized. However, the testator may handwriting. The material portions was prepared; (4) witnesses made not follow directions. If portions of of the dispositive provisions, however, statements as to their belief that the the document are in the handwriting must be in testator’s handwriting document was prepared by the testator of the testator, the document’s validity and must be signed by the testator. with intent that it be his or her last will; as a holographic will becomes an issue. The dispositive provisions have been (5) any statements that were made by interpreted as words identifying the the testator to the custodian of the will A number of cases throughout the property and the person who is to during the delivery of the document; United States have addressed whether receive the property. and (6) the acts of the testator that the testator’s signature on an envelope were consistent with the notion that containing his or her otherwise Only a minority of the holographic document was his or unsigned holographic will meets the require a valid holographic will to her last will. signature requirement. Courts that have denied probate of unsigned being made on phonograph records The use of this technology raises FUNKY HOLOGRAPHIC in early twentieth century. Hollywood important questions for will drafters WILLS (CONT’D.) even helped by inspiring video taped and probate courts in the twenty- will executions in motion pictures. first century. Could an electronic holographic wills where the testator’s One can hardly forget the opening signature act as valid signature appeared only on an envelope scene in the movie “The Testament,” for a will that exists only in electronic have done so using the rationale that based on a John Grisham novel, which form or stored on a disc? Would an the writing on such an envelope did depicts a gentlemen video taping his electronic will be more vulnerable not evidence the decedent’s signatory reading of his holographic will to his to and than a written intent but supported the inference that heirs shortly before he jumps out of a will? What issues are involved in the the decedent intended to identify the window to his death. permanence and storage of electronic contents of the envelope. wills? The need for electronic storage Video taping will executions has has become increasingly important In July of 1995, as part of the adoption become popular with some estate given the fact that most Denver of the Uniform Probate Code II, planners, who believe that the effect metropolitan courts will no longer Colorado codified the “harmless of showing a potential contestant a store original wills. There is currently error doctrine” dealing with writings dramatic video tape demonstrating a subcommittee of the Colorado intended as wills. C.R.S. § 15-11-503 the testator’s and desires will Association Trust & Estate Section was amended to narrow its application avoid a future will or trust contest. that is working with the Secretary to mistakes. The section now Estate planning frequently ask of State’s Office regarding cloud applies “only if the document is signed probate litigators when they anticipate storage of estate planning documents. or acknowledged by the decedent as litigation, whether they Storage of electronic estate planning his or her will or if it is established by should video the execution of their documents by the Secretary of State clear and convincing evidence that client’s will. would be available to lawyers who the decedent erroneously signed a cannot find, after , the document intended to be the will of Generally, probate litigators view whereabouts of their clients. the decedent’s spouse.” The Colorado video will executions as a risky Court of Appeals has held: proposition. On the one hand, a The modern trend followed by courts video of a will execution could help throughout the United States is to “In application, the larger the the proponent establish the testator’s relax the technical requirements departure from prescribed, , as well as for holographic wills. In Colorado, formal execution, the greater dispel any notion that there was the applicable statute governing the burden on the proponent to or forgery. On the holographic wills has been amended to prove by clear and convincing other hand, a video could be used by require only that “material portions” evidence that the instrument the contestant or his or her forensic of a document be in the decedent’s reflects the testator’s intent expert as further evidence that the handwriting. Moreover, testamentary ... The statute is limited testator lacked testamentary capacity intent may now be established by in its application to those and that the will was a product of referring to typed or preprinted instruments which are not undue influence. The fact that the language on a hybrid will, as long as the executed in strict compliance arranged for a video will distributive content is in the decedent’s with the requisites of C.R.S. execution could raise red flags that handwriting. As set forth above, there § 15-11-502, not to those which the video was a from the are many varieties of holographic and are not executed at all.” drafting attorney’s normal routine nonconforming wills. This area of and that he had specific concerns the law will undoubtedly be affected Advances in technology have led to regarding the client’s capacity prior by technological advancements such a push for a broader definition of a to drafting the will. as electronic signatures and digital “writing” that would allow storage of documents. to make their wills using Electronic signatures are commonly devices. There are reports of wills used today in “e-business” transactions. 4500 Cherry Creek DriveN South,E Suite W600 • Denver,S ColoradoL E80246 •T (303) 322-8943T E OfficeR • www.wadeash.com N E W S L E T T E R COLORADO’S POTENTIAL Court issued a ruling predicated upon political climate. Needless to say, this sort NEW LEGISLATION: THE that state’s Rights of the Terminally Ill of legislation has plenty of detractors and COLORADO END OF LIFE Act that held that there was nothing the opposition is formidable. OPTIONS ACT in the state’s laws that prohibited a physician from honoring a terminally ill, With the failed at legislation I have a friend who mentally competent patient’s request by over the last two years crowding her lost her father to prescribing medication in a lethal dose rear-view mirror and her father’s legacy one of those killer in order to hasten death. The ruling in mind, my friend has proposed a ballot diseases that we all provides a to physicians who initiative. She is taking her earnestly fear; one that causes might otherwise potentially be charged held belief in this movement to the grimaces and slow with for assisting a patient who people. Or, at least she is trying to. As of head shakes when wishes to end his life, but does not equate the writing of this article, proponents of Jody Pilmer the diagnosis is to a comprehensive statutory scheme. A the Colorado legislation are attempting revealed. It hap- District Court in New Mexico ruled in a to gather the 98,500 valid signatures pened a couple of years ago. similar fashion in 2014 but has since been required to place the initiative on the overruled by the New Mexico Court of November ballot. I did not know my friend’s father and I Appeals in 2015. There is currently a have not spoken to her in depth about pending appeal of that decision in the Oregon pioneered the statutory scheme the details of her loss. But I have spent New Mexico Supreme Court. for what has become widely known as enough time with her to know that to her “death with dignity” legislation and and her father and their family, it was all The movement in Colorado started with is the wizened elder of the states that wrong, for all of the reasons one would an open letter to Colorado Legislators allow the terminally ill to end their expect. But it was also all wrong because published in the opinion section of lives under certain very controlled and my friend’s father wanted the end of his the Denver Post on February 27, 2014. specific circumstances. The states that life to be on his terms. It was not. The article was titled “Please, I Want to have followed Oregon have all enacted Die.” It was a plea to lawmakers to enact statutory schemes with varying similarity There is a movement, or if not a legislation that would permit the author, to Oregon’s. The legislation proposed movement, a trend that is gaining traction my friend’s father, to end his life on his over the past few years in Colorado is toward legislation that allows people with terms. He cited the laws in other states not dissimilar. terminal illnesses the right to intentionally and asked for thoughtful review of the end their lives when and where they policy and purpose and the passage of The framework for the ballot initiative want through the use of prescribed lethal a law that would effectuate his wish. He patterns the legislation that has twice drugs. My friend and her father joined said he was not unique among terminally failed in the Colorado . It this movement while he was still alive and ill patients and suggested that there would is a statutory scheme, rather than a wanted that sort of control over the end be support. He died seven days after constitutional amendment, and it will of his life. He was claimed by his illness writing the letter, having chosen to end be known as the “Colorado End of without gaining that control. And as it his life through the refusal of nutrition. Life Options Act.” The framework is currently stands, terminally ill people in as follows: A person diagnosed with a Colorado still do not have that sort of A legislator responded to the open with a prognosis of six control. That could change in November letter with proposed legislation in the months or less who has mental capacity as the result of a ballot initiative that is two 2014/2015 legislative session. It did not and has voluntarily expressed the wish years in the making. pass. She tried again in the most recent to receive a prescription for medical session and the legislation failed to pass aid-in-dying medication may make a There are statutory schemes in four again. Understanding the complex request to receive such medication from states that provide a terminally ill person political machinations of getting sensitive a physician. In order to receive aid-in- the right to end his or her life through the legislation touching on issues of privacy dying medication, the person must make self-administration of lethal medications and firmly held moral and religious two such requests separated by fifteen prescribed by a physician. Oregon beliefs is beyond the scope of this article. days along with a valid written request, was the first state to enact this sort of The fact of the matter is that this sort witnessed by two people who believe legislation in 1997. Washington (2008), of legislation is loaded with emotional the person to be mentally capable and Vermont (2013), and California (2015) baggage and divisive in a way that makes acting voluntarily without coercion, to followed. In 2009, the Montana Supreme it particularly ill-suited to the current his or her physician. The person must be signatures. There is no doubt that the authority of a , COLORADO’S POTENTIAL opposition is preparing for a battle in the , agent under power of attorney, NEW LEGISLATION: THE COLORADO END OF LIFE coming months. or conservator to access digital assets OPTIONS ACT (CONT’D.) had been introduced in 2015 in 27 states, Whatever your thoughts on the issue including Colorado, but a concerted able to self-administer the medication. right now, I recommend that you spend lobbying effort by industry succeeded in There are other requirements, from some time with the proposed statute and blocking any enactments. The Uniform Colorado residency to the relationships decide how to vote in November. Laws drafting committee for the Act met between the terminally ill person and the again with leaders of Facebook, Google, witnesses, to a lengthy list of the attending and other industry representatives, and a physician’s responsibilities, including a 2016 COLORADO LAW compromise was reached, as evidenced second opinion, full disclosure, referral CHANGES in this Act. The first Act included default to a mental health professional if there provisions that would have permitted is doubt about mental capacity, and There were a few access by fiduciaries unless the owner counseling regarding the practicalities probate-related had prohibited such access. This Act is of self-administering the aid-in-dying bills passed by the the reverse: access by fiduciaries must medication. The proposed legislation Colorado legisla- be specifically authorized in the power does not mandate action; neither patient ture this past of attorney, Will, Trust, or court order nor physician is required to participate. session, including in the case of conservators. There have the following: now been 16 enactments of the Revised A significant commonality among the UFADAA, including Colorado. The Act statutes of the various states that have SB 16-131, part one of the so-called also attempts to encourage companies enacted death with dignity or end of “Omnibus Bill.” This bill amended to provide on-line tools for owners to life options legislation is a provision that 15-10-503 to clarify provisions relating designate persons who may have access to draws a clear distinction between the to removal of a fiduciary by the court; their accounts. Federal law still provides statutory method of hastening death the right of a protected person to a law- that companies may not permit others to and what is commonly known as . yer post-; lengthening the have access to a user’s account, and those The ballot initiative that Colorado voters time period for a request to be filed for laws do not make mention of fiduciaries. may see in November handles it with the attorneys’ fees for a benefit to the estate; following provision: and specifying that after a petition for SB 16-085 is the Colorado Uniform removal is filed, the fiduciary may not Trust Decanting Act. This Act sets forth (1) Unless otherwise prohibited by receive compensation or pay attorneys’ a procedure if a trustee determines it is in law, the attending physician or fees without court order. the best interests of the beneficiaries for the hospice medical director shall trust assets to be distributed from one trust sign the of a SB 15-133, part two of the so-called to a new trust. One example would be qualified individual who obtained “Omnibus Bill.” This bill clarified to address more modern administrative and self-administered aid-in-dying the procedure for recording a death provisions, or to incorporate provisions medication. certificate and supplementary affidavit for a . In order to take to clear to after the advantage of this procedure, the current (2) When a death has occurred in death of one joint tenant: a person with trust must give the trustee discretion to accordance with this article, the an interest in the property may sign the make distributions. Then notice can be shall be listed as the Supplementary Affidavit. This bill also given to the beneficiaries, and the assets underlying terminal illness and the substantially revised the procedure in may be distributed to the new trust. It is death does not constitute grounds 15-12-1301 et seq. to determine heirs another method to modify the terms of for post-mortem inquiry under and interests in property that can be used an irrevocable trust. section 30-10-606(1). to clear title through several decedents’ estates in one proceeding. This can be a Update: As we have reported For those who support this sort of useful option for mineral interests. earlier, for any U.S. Estate Tax Returns legislation, calling it “suicide” or “physician (Form 706) filed after July 31, 2015, a ” is anathema. For those HB 16-1051 created a procedure for Form 8971 must be filed reporting basis who oppose it, calling it “suicide” is both a beneficiary designation on a vehicle in assets to the beneficiaries. The due logical and tactically important. title, so that title may transfer outside date for this return by federal statute is probate proceedings. 30 days after the Form 706 is filed, but It will be interesting to see whether my that due date has been delayed several friend’s proposed legislation makes the SB 16-088 is the “Revised Uniform times by the IRS. The due date is now ballot. She and a team of supporters Fiduciary Access to Digital Assets Act.” June 30, 2016, and Treasury has indicated are working on getting the requisite The first to address the that no additional delays will be granted. (303) 322-8943 Office • (303) 320-7501 Fax www.wadeash.com 4500 Cherry Creek Drive South, Suite 600 Denver, Colorado 80246

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