Chapter 32 - § 32.14 • EXTRINSIC EVIDENCE — REFORMATION

• Jurisdiction: Colorado

§ 32.14 • EXTRINSIC EVIDENCE — REFORMATION

Under traditional analysis, extrinsic evidence is admissible to establish fraud or mistake in the inducement to make a will. As to the terms of the will, the admissibility of extrinsic evidence will depend upon whether the alleged ambiguity is latent or patent. If the ambiguity is latent (i.e., not appearing on the face of the will), evidence is admitted to show the testator's intent. Common examples include the equivocation (where two people meet the same description in the will, e.g., two friends both named John Jones) or otherwise where the distributee cannot be determined from the will (e.g., devised to my oldest nephew or of my most recently purchased automobile). It is said that if the ambiguity is patent, the extrinsic evidence as to intent will not be admitted; rather, the rules of construction will be utilized. It is also said that while extrinsic evidence may be employed to resolve an ambiguity, it may not used to create an ambiguity. For example, in Estate of Gross, 646 P.2d 396 (Colo. App. 1981), there was a bequest to a charity that was clearly correctly described (American Cancer Society, Colorado Division). Extrinsic evidence was not admissible to show that the decedent's real intent was to leave the bequest to another cancer organization that the decedent had supported during his lifetime. Academic commentary⁹ and the Restatement of the Law of Property (1944), however, suggest and provide that extrinsic evidence should be admissible, under a clear and convincing evidence standard, to correct mistakes (not involving fraud or misrepresentation) even where the will provisions are unambiguous. The Uniform Trust Code (not yet adopted in Colorado) § 415 (Reformation to Correct Mistakes) adopts the common law rule that the dispositive provisions of trust agreement instruments are reformable. The reformation of wills provision in the Restatement (Third) of the Law of Property — Wills and Other Donative Transfers¹⁰ is § 12.1 (Reforming Donative Document to Correct Mistakes). In an unpublished opinion, a division of the court of appeals declined to follow the Restatement provisions. Estate of Cure, 2007 Colo. App. LEXIS 791 (Colo. App. Apr. 26, 2007).

The Uniform Probate Code (U.P.C.) was amended to allow reformation of wills, and in 2009 and 2010, the legislature followed the U.P.C. Under C.R.S. § 15-11-806, the governing instrument (which would include wills and trusts, even if unambiguous) may be reformed...