The death of a loved one, whether sudden or expected, can shatter a person’s world. In addition to coping with the avalanche of emotions, there is also the unexpected pressure and emotional rollercoaster of having to deal with the deceased’s material (and immaterial) things.
While it’s usually easier for those we leave behind to have a last will and testament to dictate how our finances and assets should be divided, there are occasions where a will was not prepared correctly, leaving the surviving family members to contest it. There are many reasons why a family member may wish to contest a will. Here’s a list of the most common legal grounds for contesting a will.
|Legal Tip: If someone dies without a will in Colorado, state laws will determine how that person’s assets will be divided. Once a court has made its decision, under intestacy laws, the beneficiaries usually cannot dispute how the court decides to divide the estate, even if the deceased made specific wishes verbally while alive.|
1. Undue Influence
Undue influence comes about when a person misuses power and trust, pressuring and manipulating the will creator (legally referred to as the testator) to such a degree that they lose free will and succumb to the will of the influencer.
To contest in court, undue influence can be difficult to prove. Claims of nagging or verbally abusive behavior are, in and of themselves, not enough evidence. But if a person can show that the influencer consulted with the attorney, paid for the will and/or isolated the person from fellow friends and family members, then those claims carry greater weight in probate court.
For example: if a testator’s children are left out of a will, despite having a good relationship with the deceased, can be seen as a suspicious action in probate court but not necessarily indicative of undue influence. However, if the children or other close family members are inexplicably left out and a person who cared for the deceased (could be a family friend, neighbor) was granted a large portion of the estate, then a will’s validity may be called into question.
2. Failure of formality
Colorado law statute § 15-11-501 dictates certain standards of formality in which a will should be drafted and signed. In addition to the requirement that the testator be 18 years of age or older and be of sound mind (not deemed mentally incompetent), other required formalities are:
- that the will be in writing,
- signed by the testator,
- signed and witnessed by two impartial witnesses, and
- acknowledged by a notary public.
Generally, it is considered best practice for the witnesses not to be beneficiaries of the will. However, Colorado may not invalidate the will if it is witnessed by an interested witness (§ 15-11-505). Additionally, if the testator is unable to sign their own name, then according to statute § 15-11-502, the testator can appoint someone else to sign on their behalf.
While Colorado law does allow for these alternative scenarios, it is recommended to follow the “best practices”, such as using an estate planning attorney to draft the document, the use of two impartial witnesses and the testator sign for themselves. Otherwise a will opens itself up for possible contention by unhappy relatives.
|Legal Tip: Colorado will accept holographic wills as legitimate wills. A holographic will is handwritten and signed by the testator. It does not need to be witnessed or notarized. If the testator is unable to write the will themselves, then they may appoint someone to do so on their behalf.
Warning: Holographic wills do have significant disadvantages. Lacking professional oversight, improper terminology and ambiguous language may drive up probate court costs and duration, as these issues allow a will to be more easily contested by other family members.
3. Mental Incapacity
Colorado state law requires that a testator be of “sound mind” when a will is made and signed. To contest that a person was mentally incapacitated, you must prove that the person did not fully comprehend the document that was being executed.
To demonstrate incapacity, you must show that the testator either did not understand the measure and extent of their estate; the consequences of the division and disbursement of the will, or; were unable to make rational decisions.
For example: mental incapacity in the form of Alzheimer’s or dementia may be established in probate by offering evidence in the form of medical records, witness testimony or correspondence written around the time the will was created, that showed mental incapacity.
Contesting a will is a vigorous process in Colorado, requiring one to go to probate court, notify the other beneficiaries and the burden of proof is placed on them to show why the will is not valid. Our Colorado Springs estate planning attorneys are experienced litigators. They understand state laws and are familiar with various local courtroom procedures and the personality of local judges.
Call to schedule a free consultation with one of our estate planning attorneys today.