Chapter 4 - § 4.5 • INTEREST OF THE OBJECTOR — STANDING

• Jurisdiction: Colorado

§ 4.5 • INTEREST OF THE OBJECTOR — STANDING

Obviously, if the one filing an objection is not a person who is entitled to be heard on the subject, the objection should be dismissed. If any question is raised on this score, logically, the right of the objector to be heard should be determined before the merits of the objection are considered, and this was true under former law. Under the Colorado Rules of Civil Procedure, the issue of standing to object would be by a motion to dismiss.²⁰ If the objection states a basis for the right to object, the motion to dismiss would seem to involve an admission of any facts stated in the objection as the basis for the right to file the objection, unless an answer is filed that challenges the existence of such grounds. The power to determine the right to contest a will is a probate matter, and only the court of probate may try it.²¹ It has been held that it is improper to go to trial on objections until the matters in issue have been defined by proper pleading.²²

The objector must allege and prove that he or she has such an interest in the estate of the decedent that admission of the will to probate will adversely affect that interest. It has been held that a stepdaughter is not an heir and that such relationship cannot support a contest.²³ It has been held that an heir of a person who was entitled to contest a will, when the person entitled to contest²⁴ died before that right expired, has the right to contest.²⁵ However, the executor named in an earlier will may not contest if the only interest is the fee he or she would receive as personal representative,²⁶ and neither may the assignee of a mere expectancy in the decedent's estate,²⁷ or a devisee who has received and receipted for his devise,²⁸ but a contingent interest will support the right to contest.²⁹ The courts differ as to the standing of a general or a judgment creditor to object,³⁰ or of a person to whom an eligible person has assigned his right to contest.³¹ There also is a conflict as to whether the state can contest a will on the ground that if the will fails the property will escheat to it.³²

In Estate of Bonfils,³³ it was held that the Denver Probate Court had jurisdiction to hear an attack on a Denver District Court divorce decree (on the basis of extrinsic fraud on the court) in connection with determination of the standing of a former spouse to bring a will contest.

There are several Colorado cases upholding the right of adopted persons to contest the wills of persons who have adopted them with an agreement not to disinherit the adopted person or who have agreed to give the adopted person a share of the estate.³⁴ The cases are in agreement that there is sufficient consideration to support the agreement to make a will or not to disinherit, as the case may be, but they differ as to whether the objection is the proper procedure for enforcing the contract. Since a testamentary writing properly executed by a competent person is a will, even though executed in violation of a contract, it would appear that such an instrument should not be denied...