Original Wills and Documents – How Removing a Staple Can Complicate Litigation

Yes, the removal of a single staple can result in a costly lawsuit. Even with advances in technology, Colorado law still mandates that a Will be in paper form with actual signatures. Some flexibility was created during COVID for remote notarizations of Wills but the actual document has to be on paper.

Under Colorado Probate law, the original Will must be lodged with the court within ten days of death OR it can be deposited with the court for safekeeping prior to death.

In Colorado, some Wills are challenged in Court. A common claim is that the “original Will” was not provided to the Court. An “original Will” is the actual document that was signed by the testator (Will maker), witnesses, and notary. In the case of a holographic Will, the “original Will” is the piece of paper to which the decedent set pen. If an original Will is not deposited with the Court, a rebuttable presumption arises that the decedent revoked the Will, and proponents of the Will have to provide clear and convincing evidence of no revocation.

To determine accuracy of an original Will, the Court engages in a physical examination of the Will. To the surprise of some, if staples or other fastening devices have been removed, courts may consider the removal as evidence that the will is not the original. Simply removing a staple can therefore turn an otherwise uncomplicated probate case into one of full litigation. This is problematic when people remove staples to scan or copy the original will. Therefore, it is important to never remove a staple or other fastening device.

This same warning applies to any original document where its authenticity could be challenged, such as a transcript of testimony.

Burnham Law suggests the following tips to preserve an original document:

1. Never remove a stable or fastening device (even when scanning/copying).
2. If possible, deposit the document for safekeeping (e.g., in a safety deposit box or with the
   court).
3. Wherever it is kept, the document should be in a locked, fireproof, and/or waterproof safe or
   container.
4. When handling the document, use gloves or take efforts to handle only when necessary.
5. Try to never handle the document alone; have a third-party witness present when handling.

Burnham Law is an award-winning law firm with offices conveniently located throughout Colorado. Our roster of recognized attorneys can handle a wide range of legal issues, including estate planning and probate litigation.