When a loved one dies it is not uncommon for family members to have concerns about whether their will is valid, if they were unfairly influenced, or whether the distribution of assets is fair. Wills can be contested as part of the probate process.
If a person (called the testator) dies with a will, their will establishes how their assets and belongings are distributed after their death. But the will itself must be valid for that to happen.
Colorado requires that all of the following factors be in place for a will to be valid:
- A testator aged 18 or older at the time of the signing
- A testator who is of sound mind when the will is signed
- The testator was not unfairly influenced or defrauded into making the will
- The will is in writing
- The testator signed the will
- There are two witnesses to the will AND/OR
- The will was notarized by a notary public
One exception is that if the testator handwrites the will (this is called a holographic will), there does not need to be any witnesses or a notary. However, the holographic will must be verified to be in the testator’s handwriting, be signed by them, and there must be evidence the document was meant to be a last will and testament.
In order for a will to be considered valid after a testator dies, the people who want to use the will to distribute assets and belongings must locate and provide the court the original will or the court can presume that the will was revoked.
Probate is the legal proceeding that verifies a will and then ensures that the bequests in the will are carried out. A judge oversees the process. The estate’s personal representative (sometimes referred to as the executor) and their attorney present the will and seek to move the case forward. The probate process requires that all of the testator’s assets be accounted for (the assets are called “the estate”). Creditors can appear with their attorneys to present a claim against the estate. All of the testator’s creditors who are legally owed funds must then be paid out of the estate. Once all debts are paid, the estate is distributed to the beneficiaries, the people the testator named in the will. The case is then closed.
If you are wondering if you can contest probate, the only method for doing so is to contest the will itself. Probate is just the legal mechanism through which the will moves.
Contesting a Will in Colorado
To contest a will in Colorado, you must first prove you have legal standing and then prove that the will is legally invalid.
Colorado limits who has the legal right to contest a will. Only interested people with legal standing can seek to contest a will. This includes:
- People named in the will
- People who would inherit if the will is overturned (people who inherit under a prior will or under the state’s intestacy inheritance law)
- People with a stake in the assets in question in the estate
People who do not fall into these categories have no standing to contest a will and will not be permitted to file a claim.
Reasons for a Will Contest
There must be a legal reason to contest a will. Simply not agreeing with the provisions of the will or feeling as if you should have gotten more is not a legal reason to contest the will and will not be considered by the court.
Reasons for a will contest include:
- The will does not meet statutory requirements. If the will is not written, signed, witnessed, and notarized, it does not meet the legal requirements and can be found to be invalid. This is proven simply by presenting the will to the court and arguing that it does not include what Colorado law requires.
- The testator was under undue influence. If someone pressured the testator into creating the will or its provisions, the will can be found to be invalid. “Undue influence” can include fraud or duress. A common example of this is a hired caregiver who tricks an elderly patient into leaving all their money to them or withholds care until they sign a will giving them everything. There must be clear evidence that the testator was truly manipulated or forced into creating the will. Testimony and evidence (such as video footage) can be used to show undue influence occurred.
- The testator did not have the mental capacity required to create a will. The testator must be of sound mind at the time the will is signed. This means they must comprehend what they are signing, what it means, and who will inherit under the will. They also must have a basic understanding of what they own but are not required to know all the details (for example, they would need to know they own stock in Apple and its rough value, but do not need to understand the exact value to the penny). It is possible for a testator to have a mental illness or even have some level of dementia and still understand what is being signed and what it means. Medical records and testimony are used to prove capacity.
- Mistake. If the testator made a mistake in signing the will, it can be found to be invalid. For example, if two different wills are drafted with different provisions and the testator signs the wrong one, it may be invalid. This would be proven using testimony and evidence such as emails and attorney’s notes.
- Revocation. If the testator drafted another will after the one that is being probated, or in some other way revoked the prior will (by tearing it up, crossing it out, burning it, etc.), the first will can be found to be invalid. This is proven by submitting the most recent will and having it validated.
Since these are the only reasons a will can be invalidated, it can be challenging to contest a will. Believing you did not get what you were entitled to or that the way the testator distributed things is unfair is simply not enough to contest the will. Before getting involved in a will contest, it is important to talk with an experienced attorney who can evaluate the will and the situation and offer an opinion as to whether there is real evidence for getting the will thrown out.
What Happens in a Will Contest?
In a will contest proceeding, depending on the stage at which the probate process is, an objection can be filed to the will, or a motion can be filed to remove the personal representative of the will. First, the court establishes standing. Once the person seeking to contest the will is granted standing, their attorney will present the evidence–including testimony–they have that shows the will is invalid. The attorneys representing the personal representative and the heirs have the opportunity to question any witnesses and present their own evidence and witnesses. The judge will hear and consider all the evidence and testimony and will determine if the will is valid.
What Happens After a Will Contest?
If the court upholds the will, then the assets of the estate will be distributed to the beneficiaries according to the provisions in the will.
If the will is found to be invalid, it is then as if this will never existed. If the testator created a will before this will, that earlier will can then be probated. If there is no other will, the testator is treated as if they died intestate and their assets are distributed under the Colorado intestacy statute. Under this law, the assets usually go to the spouse and children. If there is no spouse or child, other close relatives would inherit.
Colorado will contests are a complex area of law. If you have questions about the validity of a will or would like to learn your options to contest a will, Burnham Law has experienced attorneys ready to take your case and help you get what you deserve. Call us now at 303-990-5308 to get started with a no-obligation conversation.