A will is designed to protect and respect the wishes of the testator (the person writing the will). So, what happens when the current state of a will is not expressing the testator’s wishes?
If you are a will beneficiary and notice that the will has been altered by undue influence or that the testator was taken advantage of in any way, legally you are able to contest the will.
The below article will walk you through the basics of will contests and show you how to identify a non-legal will.
What is a will contest?
A will contest is a formal objection – filed through a probate court – against a will’s validity, on the grounds that the will does not currently reflect the testator’s true intent.
The Anatomy of a Contested Will
Invalid wills, and the circumstances that create them, take many different forms. Said circumstances can ultimately be boiled down to three inciting causes:
1. Undue Influence
Undue influence occurs when a person uses their relationship with the testator to manipulate and influence the testator’s decisions. Due to its covert nature, this legal ground is difficult – but not impossible – to prove in court.
Successfully proving an allegation of undue influence in Colorado involves four elements:
- Proving that the testator was susceptible
- Proving that the influencer had the opportunity to exert undue influence
- Proving that the undue influence was exerted or attempted
- Proving that the undue influence had the desired effect for the offending party
2. Failure of Formality
Formality laws, or mandatory conditions that must be observed when creating a will, vary by each state. Colorado’s formality laws state that the will must:
- Be typed or handwritten (oral wills are invalid in Colorado)
- Be written by a testator who’s 18 years or older and of sound mind
- Be signed by at least two impartial witnesses, before or after the testator’s death
- Be acknowledged by a notary public
In addition to the above, Colorado recommends that witnesses should not be beneficiaries. Testators may also appoint someone – such as an estate planning attorney – to sign the will on the testator’s behalf.
3. Mental Incapacity
As illustrated above, the state of Colorado mandates that a testator be of sound mind when creating a will, but what is a “sound mind”, exactly?
Colorado defines a “sound mind” as when someone possesses the necessary mental capacity to execute a will. The testator’s mental capacity to execute a will encapsulates:
- Knowing and understanding the act they are performing
- Knowing the extent of one’s property
- Knowing the natural objects of one’s bounty (heirs)
- Knowing the nature and effect of the proposed disposition
Who can contest a will in Colorado?
Not everyone can contest a will in Colorado.
Legally defined as an “interested party”, only current or previous beneficiaries may contest a will in Colorado. Note that wills can only be contested when enough strong, verifiable evidence exists that proves there’s something amiss with the will. The legal term for the right to contest a will is “standing”.
When can someone contest a will in Colorado?
Statue of limitations, or how long someone has to contest a will, vary by circumstance in Colorado. While settlements typically occur within one year of filing, evidence gathering, and trial durations vary on a case-by-case basis.
Consultation with an attorney is strongly recommended.
Signs Something’s Amiss with a Will
Warning signs for undue influence and mental incapacity are often covert, invisible to the eye unless one knows what to look for and when to look for it. And while the below signs aren’t enough to serve as evidence in a probate court, the existence of one or more is enough to warrant investigating a will’s validity:
Sudden Change to the Will After Many Years
It’s not uncommon for testators to amend a will’s contents as they move through life. These changes, however, are usually small, announced ahead of time, and consistent with the testator’s personality. Sudden, unusual changes are an initial red flag that something’s amiss with the will, especially when they exclusively concern material assets and when they’re enacted close to the testator’s death.
Like the testators they represent, executors are subject to free will and thus not exempt from deciding to resign from their duties. Executor resignation, however, is not the same as disappearing completely. Proceed with caution if a previously communicative and accessible executor becomes difficult to reach and uncommunicative.
Cognitive conditions, such as Dementia and Alzheimer’s, are common in the elderly. Preexisting cognitive conditions should also always remain in the foreground of your concerns about a will’s validity because they leave testators vulnerable to exploitation and outside influence.
Wrongful Spending Patterns
This warning sign is particularly applicable to those with financial responsibilities, such as trustees and parties who have been granted Power of Attorney. Oaths to serve a testator’s best interests aren’t enough to protect material and financial assets from exploitation; always monitor accounts for suspicious spending patterns, such as unusual purchases and large, undocumented withdrawals.
How to Contest a Will in Colorado
The timeline and verdict for contesting a will in Colorado looks different for each client, but the below steps contain the essence of Colorado will contestation:
1. Ensure the Will is Compliant with Colorado Law
Contesting a will, only to learn that it was valid all along is more than just frustrating. It could also incur wasteful legal fees and emotional labor.
Before proceeding up the will contest escalation ladder, double check to see if the will meets statues (see above) for will validity in Colorado. Hiring an experienced estate planning attorney can help save time and money when pursuing a will contest.
2. Identify Grounds and Gather Evidence
Colorado’s guidelines for will validity and invalidity are clearly defined. Identifying grounds, or proof of a will’s invalidity, however, are more challenging.
Gathering enough identifying grounds to prove a will’s invalidity is challenging because gathering qualifying evidence is time-consuming and the possibilities for qualifying evidence are diverse. Witness testimonies, medical records, and detailed logs of interactions with the testator and relevant beneficiaries are just three of many helpful identifying grounds:
- Fact witnesses. Family members or close friends of the testator, who possess intimate knowledge of the testator’s mental capacity and physical condition.
- Attesting witnesses. Witnesses who observed the will’s signature session.
- Attorney as witness. The attorney who met repeatedly with the testator and drafted, gathered documentation, and executed the will.
- Treating physician. As both expert and fact witnesses, treating physicians provide both medical documentation and interpersonal relationship testimonies.
- Medical records. Hospitals may also be enlisted in will contestation, as they hold the testator’s medical records.
At The Germany Law Firm, we assist clients to gather the grounds and evidence necessary to start the will contest process. Reach out today for an initial consultation and we can help you get started.
3. Complete a Will Contest Petition
Colorado’s will validity laws include mandates that those challenging a will’s validity must explain and file their objections in a petition to a probate court. Besides identifying information, petitions must illustrate the petitioner’s relationship with the testator and state the reasons why the objector believes the will is invalid.
4. File Petition and Attend a Probate Hearing
After filing a petition, the probate court may schedule a hearing with a judge. When attending the hearing, work with your legal representative and bring any evidence that supports your claim.
Appeals and escalation to higher courts may also occur in select will litigation cases; consult a legal representative for more information.
Hiring an Attorney to Contest a Will in Colorado
Contesting a will is a long, technical process. While you may decide to start the process on your own, it is highly recommended that you retain counsel to see your case to success.