How Can I Contest a Will?

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 people who would have inherited from the deceased had there been no Will or a named beneficiary in the current or previous Will.

Undue Influence

A Will may be deemed invalid if the Testator (the person who made the Will) was under undue influence.  Undue influence occurs when a person manipulates the Testator to such a degree that they lose free will.  Common forms of manipulation are: coercion, duress, and the misuse of power.  An example of misuse of power or trust is when a person who inherits from a will was in a fiduciary relationship with the Testator and uses that relationship to influence the Will.

Failure of Formality or Improper Execution

Colorado law requires that Wills be created with certain formalities, such as:

1. The Testator be at least 18 years old;
2. The Testator be of sound mind;
3. The Will be in writing;
4. The Will be signed by the Testator or signed by an appointed person of the Testator;
5. The Will be signed and witnessed by two impartial parties; and
6. 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 be of sound mind when the Will is created and signed.  Whether the  Testator was of sound mind is a determination the court makes after looking at several factors, including:

1. Whether the Testator generally understood they were making out a Will and the effects of the Will;
2. Whether the Testator generally understood the nature and amount of property they owned;
3. Whether the Testator generally understood how the Will distributes the property;
4. Whether the Will matches the Testator’s desires; and
5. Whether the Testator 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 considers:

1. If someone made a false representation to the Testator;
2. The person knew the representation was false;
3. The Testator believed the false representation; and
4. The false representation caused the Testator 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.