Chapter 42 - § 42.7 • TESTS FOR APPLICATION OF STATUTE

• Jurisdiction: Colorado

§ 42.7 • TESTS FOR APPLICATION OF STATUTE

Unless one of the exceptions applies, the test for exclusion of the testimony on the one hand is whether one party is suing as representative of a decedent or mentally incompetent person, or as or for an heir, legatee, or devisee of a decedent, or whether he or she is, for practical purposes, suing or defending on his or her own behalf. As will appear in connection with a more detailed summary of the cases, if a person sues to establish rights as a stockholder of a corporation, he or she is not suing as an heir, even though he or she acquired the shares by inheritance, and a person being sued in a capacity that is essentially personal cannot make himself or herself a party in a representative capacity merely for the purpose of disqualifying the adversary from testifying.

On the other hand, a party to the suit or proceeding cannot testify, in defiance of the statute, unless he or she is purely a nominal party or without any real interest in the outcome of the controversy. A person who is not a party, in order to be disqualified, must have a...