Chapter 20 - § 20.2 • WILLS

• Jurisdiction: Colorado

§ 20.2 • WILLS

The term "will" includes any codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession but does not include a designated beneficiary agreement.⁸⁵

§ 20.2.1—General Requirements

Property Subject to Disposition by Will

At common law, only such real property as the testator owned at the time of the execution of his or her will could pass by the will.⁸⁶ In Colorado, a will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.⁸⁷ A will devising "all my estate" will pass property acquired after the execution of the will.⁸⁸

Persons Who May Make a Will

An individual 18 years or more of age who is of sound mind may make a will.⁸⁹

Persons Who May Take By Will

Aliens: An individual is not disqualified to take as a devisee because the individual or an individual through whom he or she claims is or has been an alien.⁹⁰

Terms of relationship: A class gift that uses a term of relationship to identify class members includes a child of assisted reproduction,⁹¹ a gestational child,⁹² and, with certain exceptions, an adoptee⁹³ and a child born to parents who are not married to each other, and their respective descendants if appropriate to the class, in accordance with the rules for intestate succession regarding parent-child relationships.⁹⁴ In construing a dispositive provision of a transferor who is not the genetic parent, a child of a genetic parent is not considered the child of the genetic parent unless the genetic parent, a relative⁹⁵ of the genetic parent, or the spouse or surviving spouse of the genetic parent or of a relative of the genetic parent functions as a parent of the child before the child reached 18 years of age.⁹⁶ In construing a dispositive provision of a transferor who is not the adoptive parent, an adoptee is not considered the child of the adoptive parent unless the adoption took place before the adoptee reached 18 years of age, the adoptive parent was the adoptee's stepparent or foster parent, or the adoptive parent functioned as a parent of the adoptee before the adoptee reached 18 years of age.⁹⁷

Persons related by affinity: Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage (such as uncles, aunts, nieces, or nephews) are construed to exclude relatives by marriage, unless when the governing instrument was executed, the class was then and foreseeably would be empty, or the language or circumstances otherwise establish that relatives by marriage were intended to be included.⁹⁸

Persons related by the half-blood: Terms of relationship in a governing instrument that do not differentiate relationships by the half-blood from those by the whole blood, such as brothers, sisters, nieces, or nephews are construed to include both types of relationships.⁹⁹

§ 20.2.2—Types of Wills

Executed Will

An executed will must be: (1) in writing; (2) signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (3) either (I) signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will or the testator's acknowledgement of that signature or acknowledgement of the will, or (II) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.¹⁰⁰ "Conscious presence" requires physical proximity to the testator but not necessarily within testator's line of sight.¹⁰¹

For forms of self-proved wills, see C.R.S. § 15-11-504.

Holographic Will

A will which does not comply with the requirements for an executed will is valid as a holographic will, whether or not witnessed, if the signature and a material portion of the document are in the testator's handwriting.¹⁰²

Writing Intended as a Will

A document, or a writing added upon a document, not executed in compliance with C.R.S. § 15-11-502 is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (1) the decedent's will, (2) a partial or complete revocation of the will, (3) an addition to or an alteration of the will, or (4) a partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will.¹⁰³ This provision applies only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse.¹⁰⁴

§ 20.2.3—Foreign Wills

A written will is valid if executed in compliance with C.R.S. § 15-11-502 or C.R.S. § 15-11-503, or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where, at the time of execution or at the time of death, the testator was domiciled, has a place of abode, or is a national.¹⁰⁵

§ 20.2.4—Construction of Wills

Deceased Devisee (Anti-Lapse)

If a devisee fails to survive the testator and is a grandparent of the testator or a descendent of a grandparent of either the testator or the donor of a power of appointment exercised by the testator's will, then, unless the will creates an alternate devise,¹⁰⁶ if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants, who take per capita at each generation the property to which the devisee would have been entitled had the devisee survived the testator;¹⁰⁷ if the devise is in the form of a class gift, other than a devise to "issue," "descendants," "heirs of the body," "heirs," "next of kin," "relatives," or "family," or a class described by language of similar import, a substitute gift is created in the deceased devisee's or devisees'¹⁰⁸ surviving descendants, the...