Chapter 53 - § 53.11 • TESTAMENTARY CAPACITY

• Jurisdiction: Colorado

§ 53.11 • TESTAMENTARY CAPACITY

Testamentary capacity requires that a testator must have at the time of signing the will the ability to understand: (1) that he or she is making a will, (2) the nature and extent of the property he or she owns, (3) how that property will be distributed under the will, (4) that the will distributes the property as he or she wishes, and (5) those persons who would normally receive his or her property. CJI-Civ. 34:11 (CLE ed. 2020). The fact that the testator may not be able to recall all of his or her property in detail at the time of signing the will does not render the will defective. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

In In re Estate of Romero, the decedent suffered from mental illness. At trial, there was expert psychiatric testimony that established a diagnosis of schizophrenia, but the expert was unable to establish a causal relationship between the decedent's auditory hallucinations and his testamentary capacity.

A prior adjudication of incapacity is not conclusive with respect to a subsequent will because the testator may have been competent at the time of the signing of the will and the test for capacity with respect to guardianship or conservatorship is not the same as testamentary capacity. Id. The fact that a testator may have required assistance in signing a will does not prove incapacity where there is sufficient evidence to show that the decedent knew what he or she was doing. In addition, medical testimony from someone who never met the testator will be disregarded when it is contrary to the testimony of those who were present at the signing. Estate of Stitzer, 68 P.2d 561 (Colo. 1937).

The contestant is required to establish the testator's lack of capacity by a preponderance of the evidence. C.R.S. § 13-25-127(1). Establishing lack of testamentary capacity by direct evidence is rare. Wide latitude is given in introducing evidence on testamentary capacity. Ashworth v. McNamee, 70 P. 156 (Colo. App. 1902). Colorado courts have generally taken a liberal view on admitting testimony to accumulate circumstantial facts from which testamentary capacity can be inferred. In re Estate of Porter, 240 P.2d 516 (Colo. 1952). Testamentary capacity is ascertained from the testator's state of mind at the time he or she executed the will. Estate of Southwick v. First Nat'l Bank of Colo. Springs, 515 P.2d 484, 486 (Colo. App. 1973). Testamentary capacity is a substantive question of fact. The issue is...