When and How to Contest a Colorado Last Will and Testament
As difficult as it is when a loved one dies, that pain can be compounded when you discover that your loved one’s Last Will and Testament didn’t say what you thought it did. Sometimes there’s nothing you can, or should, do about a will that contains surprising or disappointing provisions. But sometimes, unexpected bequests in a will, or the omission of someone expected to inherit, points to a Colorado will that should be contested. How do you know? And what can you do about it?
Who can contest a Colorado will?
No matter how strange or wrong a will seems, only certain people have the legal right to challenge or contest it. This right is referred to as “standing.” In Colorado, only interested parties have standing to contest a will. “Interested” in this context means that a party would have inherited from the deceased under Colorado law had there been no will, or that he or she was named as a beneficiary of the current will or a previous will. This rule offers certainty and protection for families. It prevents, for instance, the next door neighbor who mowed your mother’s lawn from challenging your mother’s will because she allegedly promised to include him.
What makes a Colorado will invalid?
Having standing to contest a Colorado will is not enough to mount a valid challenge to the will, even if you think the will is unfair. There must be some sort of problem with the will itself. Grounds for challenging a will in Colorado include:
- Improper Execution: A will may be challenged if it’s not properly executed. In Colorado, a will must be signed in writing by the testator (person making the will) or by someone else at the testator’s direction. The will must be signed by two individuals who witnessed the testator’s signing or the testator’s acknowledgement of the signing, or by a notary public or other person authorized by law to take acknowledgments. An unwitnessed, handwritten will signed by the testator may also be considered valid as a holographic will.
- Lack of Mental Capacity: In Colorado, any person over the age of eighteen who is of sound mind may make a will. If there is concern about the testator’s mental capacity when the will was made, it may be challenged. An allegation of lack of capacity should be supported with the statement of a doctor who examined the testator around the time he or she made the will, medical records, or with reports of reliable witnesses to the testator’s mental state.
- Fraud: There are a variety of ways in which a will can be invalid due to fraud. Someone may commit fraud by lying to the testator in order to induce him or her to make or change a bequest in a will. The testator may also be fraudulently induced to sign a will by someone who causes him or her to believe it is a different document altogether.
- Undue Influence: This refers to a situation in which an individual is able to persuade the testator to change a will due to the relationship between that person and the testator. Undue influence is often alleged (but not necessarily present) when a testator makes a large bequest to a romantic partner or a caretaker at the expense of family members.
Even if one of these four circumstances appears to be present, bear in mind that evidence may be introduced to show that the testator was of sound mind and that the will truly did reflect the testator’s intentions. If the will contest is successful, the court may declare the will invalid, and the estate will pass as it would if there had never been a will. Alternately, the court may declare certain provisions invalid, but let the remainder of the will stand.
What’s the first step in contesting the will?
If you believe that you have standing to contest a will as an interested party, and that there is reason to believe there’s a problem with the will, your first step should be a call to an experienced Colorado will contest attorney. A knowledgeable attorney will confirm whether you have standing and whether there are grounds to challenge the will. He or she will also discuss with you your reasonable chances of success in a will contest, as well as other potential ramifications, such as damage to family relationships and consumption of estate assets due to the cost of the estate defending the challenge. Your attorney will also help you explore alternatives to a will contest, if applicable. If you decide to proceed with a will contest, your attorney will make sure the necessary pleadings are properly prepared and timely filed.
If you are contemplating a will contest in Colorado, or need to defend against one, Davis Schilken, PC can help. Contact us at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. We look forward to working with you.