Chapter 53 - § 53.16 • DISCOVERY IN WILL CONTEST LITIGATION

• Jurisdiction: Colorado

§ 53.16 • DISCOVERY IN WILL CONTEST LITIGATION

If no procedure is specifically prescribed by rule or statute, the court may proceed in any lawful manner not inconsistent with the Colorado Rules of Probate Procedure and the CPC, and shall look to the Colorado Rules of Civil Procedure and to the applicable law if no rule of probate procedure exists. C.R.P.P. 5(b). In will contest litigation, the parties may seek to invoke the Colorado Rules of Civil Procedure. In will contest litigation, Probate Rule 40 generally governs discovery as well as case management. This Rule also gives the court discretion to apply the Rules of Civil Procedure in whole or in part.

C.R.C.P. 16 and 26 do not apply to probate proceedings unless otherwise ordered by the court or stipulated by the parties. C.R.C.P. 16(a) and 26(a). It was the intent of the Colorado legislature in revising C.R.C.P. 16 and 26 to make these rules generally inapplicable to "expedited proceedings," including juvenile and probate proceedings. Thus, C.R.C.P. 16 and 26 do not govern procedure in a routine, uncontested probate proceeding. However, the legislature clearly intended that C.R.C.P. 16 and 26 may govern procedure in probate proceedings such as will contests where contested issues of fact and law necessitate a trial.

Comment [8] to C.R.C.P. 16 states:

The purpose and scope of Rule 16 are as set forth in subsection (a). Unless otherwise ordered by the Court or stipulated by the parties, Rule 16 does not mandatorily apply to domestic relations, juvenile, mental health, probate, water law, forcible entry and detainer, Rule 120, or other expedited proceedings. Provisions of the Rule could be used, however, and Courts involved in those proceedings should consider their possible applicability to particular cases.

The purpose of C.R.C.P. 16 is "to establish a uniform, court-supervised procedure involving case management which encourages professionalism and cooperation among counsel and parties to facilitate disclosure, discovery, pretrial and trial procedures." C.R.C.P. 16(a). The purpose of C.R.C.P. 26, in conjunction with related procedural rules, is to provide a differential case management/early disclosure/limited discovery system designed to resolve difficulties experienced with prior approaches. C.R.C.P. 26 Committee Comment.

§ 53.16.1—Testamentary Exception to Attorney-Client Privilege and Work Product

Will contest litigation may involve procedural disputes involving discovery of the testator's medical records and his or her attorney's estate planning file. In...