Chapter 53 - § 53.7 • STANDING AND FIDUCIARY NEUTRALITY

• Jurisdiction: Colorado

§ 53.7 • STANDING AND FIDUCIARY NEUTRALITY

A person must have standing to file an objection to the probate of a will. Typically, an heir or devisee is the only person entitled to object to the probate of a will. Under the Colorado Rules of Civil Procedure, the issue of standing to object would be raised by a motion to dismiss. C.R.C.P. 12(b). The Denver Probate Court or a district court sitting in probate has the exclusive power or right to hear a will contest. C.R.S. § 15-10-302.

To show standing to contest a will, the contestant must allege and prove that he or she has sufficient interest in the estate of the decedent and that the admission of the will or codicil to probate will adversely affect that interest. Colorado courts have held that a stepchild is not an heir and that such a relationship cannot support a contest. Estate of McCardle, 35 P.2d 850 (Colo. 1934). Where an heir or devisee dies after initiating a challenge to a will, but prior to the final determination on the will contest, his or her heir has a right to maintain the contest. Estate of Field, 238 P.2d 578 (Cal. 1951). A personal representative who only has a mere expectancy of a fee as personal representative may not contest a will. C.C. Marvel, "Right of Executor or Administrator to Contest Will or Codicil of His Decedent," 31 A.L.R. 2d 756 (1953). Similarly, an assignee of a mere expectancy in a decedent's estate does not have standing to bring a will contest. G.V.I., "Right of Assignee of Expectancy to Contest Will," 112 A.L.R. 84 (1938). Colorado courts have upheld the right of an adopted child to contest wills of the adoptive parent pursuant to an agreement not to disinherit the adopted child or an agreement to give the adopted child a share of the estate. Estate of Schmidt, 273 P. 21 (Colo. 1928).

Frequently, the issue of fiduciary neutrality is raised in litigation involving a surviving spouse's right to an elective share of the augmented estate. In order to facilitate the exchange of financial records, the Colorado Probate Code requires a personal representative to remain neutral. C.R.S. § 15-12-703(7)(d) and (8)(a) and (b). When any personal representative participates in the proceeding and has a material conflict of interest any interested person can petition...