Probating Flawed Wills: Colorado's New Crs Section 15-11-503

JurisdictionColorado,United States
CitationVol. 25 No. 11 Pg. 85
Publication year1996
25 Colo.Law. 85
Colorado Lawyer

1996, November, Pg. 85. Probating Flawed Wills: Colorado's New CRS Section 15-11-503


Vol. 25, No. 11, Pg. 85

Probating Flawed Wills: Colorado's New CRS § 15-11-503

by David K. Johns

The Colorado Probate Code recently underwent major changes with adoption of revisions to the Uniform Probate Code Article II ("UPC II").(fn1) One provision having significant implications is the new CRS § 15-11-503, which, for the first time, gives Colorado courts authority to admit flawed wills to probate.(fn2) The provision is a major departure from traditional practice and places Colorado on the cutting edge of the law of wills and probate. This article is a brief analysis of the new law and its potential ramifications

The New CRS § 15-11-503

New CRS § 15-11-503 contains the following language:

Although a will was not executed in compliance with section 15-11-502, the will is treated as if it had been executed in compliance with that section if the proponent of the will establishes by clear and convincing evidence that the decedent intended the will to constitute the decedent's will.(fn3)

Commonly referred to as a "harmless error" rule or "dispensing power," CRS § 15-11-503 grants the judiciary the power to dispense with statutory execution formalities to admit a flawed instrument to probate if the proponent can show by clear and convincing evidence that the document was intended to be the decedent's will. The law is intended to validate wills that are flawed due only to minor errors in execution. Traditionally, any error in execution, regardless of how minor, would render a will void.

The new law is based on UPC II § 2-503 and is a continuation of a general philosophy of the Uniform Probate Code attempting to re-establish wills as a dominate instrument to transfer wealth at death.(fn4) Due to an increase in the use of nonprobate-type instruments (revocable trusts, joint bank accounts, Totten accounts, pay-on-death accounts, and insurance policies, for example) to transfer wealth at death, a stated purpose of UPC II § 2-503 is to unify "the law of probate and non-probate transfers, extending to will formalities the harmless error principle that has long been applied to defective compliance with the formal requirements for non-probate transfers."(fn5)

Origins from "Down Under"

UPC II § 2-503 was based on Australian law; thus, the origins of Colorado's new law can be traced directly to similar statutory provisions in Australia.(fn6) In 1975, the state of South Australia adopted a dispensing power enabling flawed wills to be admitted to probate after a showing "beyond a reasonable doubt" that the decedent intended the document to be valid.(fn7) Even with the high standard of proof, Australian courts have admitted documents to probate that have major deficiencies: unattested wills signed by the testator; attested wills but unsigned by the testator; and even wills attested and signed by someone other than the testator.(fn8)

Historical Perspective

The right of testamentary disposition is provided by state statute,(fn9) not the constitution, common law, or a so-called "natural right."(fn10) As such, the only means to exercise the right is to fully comply with the statutory requirements, including execution formalities. States in this country based their respective will execution statutes on English laws: The Wills Act of 1540,(fn11) Statute of Frauds of 1677,(fn12) and Wills Act of 1837.(fn13) The latter was the most influential,(fn14) requiring strict adherence to specific execution requirements to establish a valid will.

Although there are variations to execution requirements, generally state statutes require a will to be in writing,(fn15) signed by the testator, and signed by at least two competent witnesses.(fn16) Some state statutes require, inter alia, publication by the testator and that the witnesses and testator all sign within each other's "line of sight." The purposes of execution formalities are to make certain that the testator has the requisite testamentary intent and testamentary capacity, and to provide necessary safeguards against fraud, undue influence, and mistake in the making of the will.

Prior to adoption of the new statute, the validity of a nonholographic will in Colorado was dependent on strict adherence to statutory execution requirements, assuming the testator had sufficient mental capacity and was free of undue influence. Requirements included that the will be in writing, signed by the testator, and signed by at least two persons who witnessed either the signing by the testator or the testator's acknowledgement of the will or signature.(fn17) The traditional execution requirements were minimized with adoption of the Uniform Probate Code in 1973,(fn18) which had the stated purpose of admitting wills to probate whenever possible.


However, the Colorado Supreme Court clearly stated that although the number of formalities had been reduced, those that remained required strict adherence by a testator.(fn19)

Formalities of will execution ceremonies serve primarily four functions:(fn20)

1. Formalities provide the court with reliable evidence of the testator's intention to give terms of a will legal effect---a "cautionary" function. Ceremonies demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner, by requiring a level of deliberation and reflection about testamentary desires.

2. To further verify intent, fulfillment of necessary acts is evidence of the testator's premeditation and deliberation and signifies the finality of intention---a "ritual" function.

3. Formalities serve to establish evidence to authenticity of a will---a "protective" function. Formalities serve as safeguards against fraud, substitution, duress, and undue influence, and help establish the genuineness of specific disposition of property intended by the testator.

4. Formalities enable a degree of standardization to be achieved, which makes processing transfers more efficient and less expensive---a "channeling" function. Compliance with formalities allows courts to avoid examining issues of authenticity and intent in every case.

Prior to the Wills Act of 1837, English courts often took considerable liberties with formalities of the Statute of Frauds in order to admit to probate wills that were incomplete, unexecuted, or both.(fn21) Courts based such decisions on extrinsic evidence as to the intention and declarations of the deceased.(fn22) Since the Wills Act of 1837, the law of wills required strict and full compliance to statutory execution requirements before a will could be admitted to probate.

It has been observed that even the most minute defect in formal compliance is held to void a will---no matter how abundant the evidence that the defect was inconsequential.(fn23) This harsh rule has dictated that statutes governing execution of wills must be strictly and literally complied with and that courts must rigidly enforce them. Once a formal defect is found, courts have been almost unanimous in denying probate of a flawed will, regardless of the intent of the testator.(fn24) Consequently, the new § 15-11-503 and similar provisions as adopted in other states(fn25) pose the most significant change in the law of wills in this country since the Wills Act of 1837.

The New Statute

UPC II § 2-503 extends the dispensing power to validate not only a defective will, but also partial or complete revocation of a will, an addition to or an alteration to a will, or a partial or complete revival of a formerly revoked will or of a formerly revoked portion of a will. In Colorado, it was viewed that such broad application of a dispensing power would foster a substantial increase in will contest litigation. Therefore, Colorado's new CRS § 15-11-503 is a more narrow dispensing power statute, restricted to validating only wills, not to be extended to issues regarding revocations, alterations, and revivals of prior revoked documents.

"The new § 15-11-503 and similar provisions ... pose the most significant change in the law of wills in this country since the Wills Act of 1837."

CRS § 15-11-503 cannot be used to validate documents procured by fraud or where the testator...

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