Chapter 15 - § 15.7 • RIGHT TO CONTROL ACTION — STANDING TO SUE

• Jurisdiction: Colorado

§ 15.7 • RIGHT TO CONTROL ACTION — STANDING TO SUE

Unless the representative is not acting for the benefit of the interested persons, they have no right to interfere with the litigation.⁴⁵ The representative has the right to conduct the foreclosure of a mortgage owned by the estate,⁴⁶ to bring an action to invalidate irrigation district bonds and the lien of its taxes,⁴⁷ to collect funeral expenses from one responsible for the decedent's death,⁴⁸ and to collect the share of a trust fund payable to the decedent.⁴⁹

In a dissolution of marriage action, In re Marriage of Kanefsky, 260 P.3d 327 (Colo. App. 2010), a party was incapacitated and had a conservator, an attorney, and a guardian ad litem. The court dismissed the guardian ad litem and allowed the attorney to withdraw. The conservator entered her appearance to appeal the entry of permanent orders. The court of appeals denied the standing of the conservator. The ability of a person to appear pro se does not extend to a guardian or conservator and allowing the conservator to appear would violate the rules prohibiting the unauthorized practice of law.

Two cases involving standing to enforce charitable trusts are Anderson v. Suthers, 338 P.3d 384 (Colo. App. 2013), and Courtenay C. & Lucy Patten Davis Foundation v. Colorado State University Research Foundation, 320 P.3d 1115 (Wyo. 2014).

See § 23.4 for a discussion of the role of the personal representative (personal representative neutrality) in contested cases.

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Notes:

^[45] McArthur v. Brigham, 125 P. 576 (Colo. App. 1912); Estate of Scott v. Smith, 577 P.2d 311 (Colo. App. 1978); Fry and Co. v. Adams County Dist. Court, 653 P.2d 1135 (Colo. 1982). See also Estate of Malone, 599 P.2d 965 (Colo. App. 1979) (once removed, co-trustee no longer has standing to continue to litigate objections to payment of death taxes commenced prior to removal).

^[46] Buck v. Fischer, 2 Colo. 182 (1873).

^[47] Fowler v. Badger Irrigation Dist., 219 P. 209 (Colo. 1923).

^[48] Kling v. Phayer, 274 P.2d 97 (Colo. 1954).

^[49] Hall v. Estate of Cowles, 25 P. 705 (Colo. 1891).