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Colorado will contests: lack of testamentary capacity


For a will to be valid, the deceased person must have been of sound mind.

Sometimes a will takes family members or will beneficiaries by surprise. For example, the amount left to someone might be unexpectedly small or large; someone close might be omitted from the will; or assets may be left to someone outside the family.

In this situation, those impacted may question whether the will is authentic or valid. Family members may worry that someone took advantage of the decedent or inappropriately influenced his or her decisions.

Colorado law lays out procedures for an interested person to contest the validity of a will in a state court formal testacy proceeding. The procedures are complex and vary with the circumstances, and have detailed deadline and notice requirements.

To contest a will, the contestant must establish at least one of these:

  • Lack of testamentary intent or capacity
  • Undue influence
  • Fraud
  • Duress
  • Mistake
  • Revocation

According to The Colorado Estate Planning Handbook, the two most common grounds raised are lack of testamentary capacity and undue influence. One published Colorado Court of Appeals case illustrates the concept of testamentary intent well.

In the case, a veteran wrote a will leaving only $500 to each of his children, with the remainder of his property left to his mother and sister equally. If one of them died before the testator (writer of the will), the remainder was left to the other in full.

Lack of testamentary capacity

The children argued that their father could not have had the testamentary capacity to execute a valid will because he was not of “sound mind” based on his mental illness and status as a protected veteran over his financial affairs. The trial court held and the appellate court affirmed that the decedent had testamentary capacity under each of the two legal tests that apply.

The court found testimony of the lawyer who prepared the will credible that he had “no doubt in his mind” that the decedent understood the consequences of the will and that the testator had wanted to disinherit his kids because they had had “minimal contact,” whereas his mother and sister had provided “love and support” for years. The small bequests to the children were made after the attorney suggested they would show the testator’s intention that his kids not be primary beneficiaries.

Testamentary capacity is established when all these were true:

  • The testator understood the will’s purpose.
  • The testator understood the extent of his or her property.
  • The testator understood the property disposition.
  • The testator understood the “natural objects of his or her bounty” (the people who would be expected to inherit from the person, such as closest family).
  • The will represents the decedent’s wishes.

In this case, the children asserted that the second prong was not met. The court disagreed because the testator is not required to know the exact amount of property if its nature is understood and the veteran knew that his estate was comprised of accumulated public benefits received over the years.

In addition, the decedent was not under an “insane delusion” that his estate was “minimal or nominal” because he understood and approved of how his estate was being managed as a veteran under financial guardianship. Finally, the court found that being under veteran’s guardianship for financial matters did not mean that the testator lacked testamentary capacity.

Anyone in Colorado questioning the validity of a will or asserting its authenticity should contact an experienced probate attorney for legal guidance and representation.

The lawyers at Chayet & Danzo, LLC, in Denver, Edwards and Aspen represent will contest clients.

Keywords: will, validity, sound mind, Colorado, will contest, testamentary capacity

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