Chapter 42 - § 42.13 • DISQUALIFICATION OF NAMED EXECUTOR ON PROBATE

• Jurisdiction: Colorado

§ 42.13 • DISQUALIFICATION OF NAMED EXECUTOR ON PROBATE

When Colorado first adopted from Illinois cases the minority rule that the executor named in the will is defending as such when a caveat is filed,⁸⁵ it was done recognizing that we had adopted the minority rule, but feeling required to do so because of the identity of our statute with that in Illinois and the existing decisions in that jurisdiction. In Branter v. Papish,⁸⁶ the Colorado Supreme Court reconsidered its position, indicating its regret at its earlier decision but stating that under the circumstances the rule should not be changed without legislation because of the numerous applications of the doctrine by lower courts. The Colorado rule seems inconsistent with Risbry v. Swan,⁸⁷ in which it was held that although the representative was a necessary party, he was a nominal one in a suit to impress a trust on the assets of the estate by reason of the breach of a contract to make a will. The court stated that the estate as an entity is not interested in the outcome of the litigation since the amount of the estate will remain unchanged by the litigation, the only thing determined being the identity of the persons for whom the administrator is holding the property. For these reasons, the real quarrel is between two groups for whom the administrator is a mere stakeholder, and he or she is not permitted to raise the question as to the competency of either of the contending parties to testify. It would seem that the named executor during a contest is in essentially the same position of disinterest, despite his or her possible statutory duty under pre-Code law to try to have the will admitted to probate.⁸⁸ The contest is between the heirs on the one hand and the devisees named in the will on the other hand, and it really makes no difference to the proponent which of them wins since he or she is not yet acting as executor and the size of the estate will not be affected by the outcome. Under the majority rule, the executor named in the will is not treated as a true party and hence is a competent witness, and this would seem to be the better rule.⁸⁹

A 1969 amendment to the dead man's statute makes it clear that in a proceeding to establish or contest a will, no person should be deemed to have a direct interest in the outcome of the proceeding solely because of an expectation of just compensation, directly or indirectly, for services to be rendered by the witness in connection with the administration of...