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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. 1 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 hand- written 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 2 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. 3 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.