Chapter 53 - § 53.13 • REFORMATION OF WILLS

• Jurisdiction: Colorado

§ 53.13 • REFORMATION OF WILLS

Historically, contestants of a will have had the opportunity to contest a will on the basis of lack of capacity, undue influence, fraud, duress, mistake, or revocation by a preponderance of the evidence. C.R.S. § 15-12-407. UPC III, effective in Colorado July 1, 2010, applies to instruments executed by decedents dying on or after July 1, 2010. Courts now have the ability to reform wills to correct mistakes. C.R.S. § 15-11-806 (effective July 1, 2010, as amended Jan. 1, 2019) provides:

The court may reform the terms of a governing instrument [which includes wills and trusts], even if unambiguous, to conform the terms to the transferor's intention if it is proved by clear and convincing evidence what the transferor's intent was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Prior to the enactment of this section, courts permitted, under limited circumstances, the reformation of trusts. The party seeking to reform a trust was required to demonstrate, upon clear and convincing evidence, that the settlor had made a material mistake and that the terms of the trust, therefore, did not reflect the settlor's true intent and that, but for the mistake, the settlor would have used different terms. See Loring, A Trustee's Handbook § 8.17. UPC III permits wills to be reformed under the same grounds as a trust. Although contestants have traditionally had the ability to allege "mistake" to set aside wills, they now have an alternative cause of action for reformation. C.R.S. § 15-11-806. Under this section of the CPC, an action to reform a will requires "clear and convincing evidence" rather than a "preponderance of the evidence," and therefore, it may be more difficult to prove. Contestants seeking to set aside wills based upon "mistake" should be careful to make sure they specifically reference which statutory section they are relying on to assert that claim. Under the Colorado Uniform Trust Code effective January 1, 2019, courts may reform trusts to conform to the settlor's intent. C.R.S. § 15-5-415.

In In re Estate of Little, 433 P.3d 172 (Colo. App. 2018), Caroline Little (Little) left her estate to her spouse Jeffrey Curry (Curry), from whom she later divorced. After her death, Curry claimed that he was entitled to inherit under Little's will because they had remarried at common law before she died...