Chapter 53 - § 53.15 • EVIDENCE

• Jurisdiction: Colorado

§ 53.15 • EVIDENCE

The Colorado Rules of Evidence apply to will contests. Frequently in will contest litigation, attorneys attempt to introduce, through competent witnesses, the decedent's statements regarding his or her intent to make or revoke a will. The introduction of these types of statements is often met by opposing counsel's hearsay objections as well as objections raising the Colorado Dead Man's Statute. Hearsay is generally defined as "a statement other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted." CRE 801(c). The rationale underlying the rule against hearsay is to prohibit the introduction of evidence by out-of-court statements where the offered statement's accuracy and truth cannot be tested by cross-examination. Fernandez v. People, 490 P.2d 690 (Colo. 1971). The decedent's statements regarding his or her intent to make or revoke a will are often introduced to prove the truth of the matter asserted; therefore, such statements are hearsay and they must fall under one of the exceptions to the hearsay rule to be admissible.

§ 53.15.1—State of Mind Exception to Hearsay Rule

Colorado Rule of Evidence 803(3) sets forth the "state of mind exception" to the hearsay rule. It provides:

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant's will.

Generally, courts have limited the application of the state of mind exception to a declarant's statements of future intent, refusing to allow statements of memory or belief of past events. The state of mind exception allows forward-looking statements of future conduct or statements of intention to be admitted, while excluding backward-looking statements of memory or belief unless related to the will. However, under the state of mind exception, statements of a decedent, whether related to past or future acts, are admissible to show intent, as long as they are related to the creation, revocation, identification, or terms of the decedent's will.

Colorado courts have upheld the introduction of the decedent's statements regarding his or her intent to provide financial support for his or her child. CRE 803(3); Morrison v....