Chapter 42 - § 42.9 • CASES IN WHICH PERSONS WERE NOT DISQUALIFIED

• Jurisdiction: Colorado

§ 42.9 • CASES IN WHICH PERSONS WERE NOT DISQUALIFIED

The following are summaries of a number of cases in which persons were held to be competent to testify.

The wife or other relative of a disqualified person is not disqualified solely by reason of the relationship since such a person is not directly interested in the outcome of the litigation.⁴⁵

If a person is suing or defending nominally as representative but essentially is acting in his or her personal interest, the opposing party may testify. The representative may testify on his or her own behalf against an adverse party who is defending personally,⁴⁶ but before admitting or excluding the testimony there should be a preliminary hearing to determine the facts in regard to the capacity in which the person is suing or defending.⁴⁷

A brother of the claimant, who was a devisee and would be injured if the claimant recovered, may testify in favor of the claimant.⁴⁸

When the plaintiff is suing her own grantee to set aside a conveyance made under undue influence, she is suing in her own right and is competent to testify even though there is involved in the case a deed that never was delivered to a deceased daughter.⁴⁹

A witness who was not a party but who also claimed an interest in the property was competent in a replevin suit to testify, since, not being a party, his interest in the property could not be affected by the outcome of the suit.⁵⁰

In a will contest, the principal beneficiary was also executrix. A beneficiary who had been cut off with one dollar could testify against the will, since, while the executrix was a party as representative, she was nominally so, and she personally was the real person in interest, inasmuch as she was the principal beneficiary.⁵¹

Neighbors having no interest in the controversy are competent to testify on a claim for services.⁵²

A witness who was not a party, whose testimony might relieve him of personal liability in connection with a suit on false pretenses, does not have such a direct interest that disqualifies him.⁵³

The members of a church that is a devisee are competent to testify in a will contest since they have no direct interest in the outcome.⁵⁴

The attorney who drew a will could testify as to the events leading up to the signing of the will.⁵⁵

Even though he or she also is attorney for the proponent of the will, a lawyer's interest in his prospective fee for services to be rendered in the administration of the estate does not indicate such a direct interest in the outcome as to disqualify him or her as a witness in a will contest.⁵⁶

Anyone may testify as to events after death.⁵⁷

A person with no interest in the outcome may not be joined for the purpose of disqualifying the adverse party to testify, but the suit must be dismissed as to the improperly joined person.⁵⁸

In a foreclosure of a first mortgage where the administrator of the decedent was made a party because the estate held a second mortgage, the plaintiff could testify to prove...