A Will is a legal document that gives instructions for distributing assets upon death. Only “interested parties” are allowed to contest (or fight) the validity of a Will. In Colorado, “interested parties” are defined as someone who would have inherited from the deceased had there been no Will or a named beneficiary in the current or previous Will.
A contested Will describes when an interested party files a petition with the court asking that all or a portion of the Will be considered invalid. Colorado law allows for Wills to be contested for limited reasons, with the following being the most common:
Undue Influence
A Will may be deemed invalid if the person who made the Will was under undue influence. Undue influence occurs when a person manipulates the person who made the Will to such a degree that they lose free Will. Common forms of manipulation are coercion, duress, and the misuse of power. The misuse of power or trust is difficult to prove. Classic examples are when a person who has a confidential or fiduciary relationship with the testator improperly influences the contents of the Will. Confidential or fiduciary relationships arise in a variety of ways but the most common is when a person is the Will maker’s power of attorney.
Failure of Formality or Improper Execution
Colorado law requires that Wills be created with certain formalities (with exceptions), such as:
- The Will maker be at least 18 years old;
- The Will maker be of sound mind;
- The Will be in writing;
- The Will be signed by the testator or signed by an appointed person of the testator;
- The Will be signed and witnessed by two impartial parties; and/or the Will be notarized.
Whether you are creating a Will or contesting one, it’s beneficial to consult an experienced attorney to ensure each formality is upheld, or in some cases, that the appropriate exception is made.
Mental Incapacity
Colorado law requires the Testator (Will maker) be of sound mind when the Will is created and signed. Whether or not the Testator was of sound mind is a determination made by the court after looking at several factors, including:
- Whether the Will maker generally understood they were making out a Will and the effects of the Will;
- Whether the Will maker generally understood the nature and amount of property they owned;
- Whether the Will maker generally understood how the Will distributes the property;
- Whether the Will matches the Will maker’s desires; and
- Whether the Will maker was able to make rational decisions.
If the court finds that the Testator had a general understanding of the factors, the court should determine they were of sound mind.
Fraud
A Will may be considered invalid if its creation was due to fraud. In determining a claim of fraud, the court should consider:
- If someone made a false representation to the Will maker;
- The person knew the representation was false;
- The Will maker believed the false representation; and
- The false representation caused the Will maker to execute a Will they would not have otherwise executed.
Whether you are the person contesting a Will or defending its validity, you need a strategic trial attorney who knows the law. While some attorneys may practice in probate and estate planning, not all attorneys are seasoned inside the courtroom. At Burnham Law, our attorneys are seasoned in the law AND in the courtroom. Do not go into these emotional and complex cases alone; hire Burnham law today.