Chapter 53 - § 53.9 • CHALLENGES TO EXECUTION

• Jurisdiction: Colorado

§ 53.9 • CHALLENGES TO EXECUTION

The current CPC requires that a formal typed will, as opposed to a holographic will, be signed by at least two individuals, either prior to or after the testator's death, each of whom sign within a reasonable time after he or she witnessed the testator's signing of the will, or the testator's acknowledgment of that signature or acknowledgment of the will. C.R.S. § 15-11-502(1)(c)(I).

Wills must be executed in accordance with one or more of the provisions of the CPC. C.R.S. §§ 15-11-501 through -506. If the contestant claims some defect in the execution of the will or codicil, he or she must state the nature of the defect. If the issue to be determined involves the circumstances surrounding the execution of the instrument, the initial question is whether the will is "self-proved." A self-proved will is one that is attested with an attestation clause containing statutory language together with sworn declaration to a notary public as to statutory compliance of the execution ceremony. The document is then notarized and, on account of the notarization under the Colorado Rules of Evidence, should be received into evidence without further proof. The admission of a self-proved will in evidence will provide prima facie evidence of due execution, and the burden then shifts to the contestant to rebut that the document was properly executed.

If the will is not self-proved, then the proponent must make a prima facie case by the submission of witnesses' testimony. The proponent must prove from at least one subscribing witness, or otherwise, (unless the will is holographic or foreign) that: (1) the will was signed by the testator or by someone in his or her presence and at his or her direction, (2) the testator signed in the presence of two or more witnesses or that the testator acknowledged the document as his or her will, or acknowledged his or her signature on the will, before the witnesses, and (3) each of the witnesses signed the will as witnesses. C.R.S. §§ 15-12-406(1) and 15-11-502.

It is no longer necessary that the witnesses declare the testator to be of sound mind and to be at least 18 years of age. C.R.S. § 15-11-502. The will is valid even when a witness is a beneficiary under the will. C.R.S. § 15-11-505(2).

A valid holographic will must have all material provisions and the signature in the handwriting of the testator. C.R.S. § 15-11-502; see Notes on Use, CJI-Civ. 34:5 (CLE ed. 2020). Unless there is proof of fraud or...