Chapter 55 - § 55.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 55.1 • INTRODUCTION

In addition to the statutory and legal remedies discussed elsewhere in this Handbook, there are several equitable remedies and defenses available to parties in trust and estate litigation. The available remedies can serve as particularly useful tools, especially in situations in which the statutory and/or legal remedies are inadequate or unavailable.

While C.R.C.P. 2 merged legal and equitable actions into a single "civil action," the distinction remains an important one in probate, particularly when considering the remedies that a court might impose. Rather than simply looking to the historical origin of a right, the courts currently focus more on the nature of the remedy requested generally — whether monetary damages are being sought or if the focus is more on the coercive power of the court. Peterson v. McMahon, 99 P.3d 594 (Colo. 2004); see also Marcie R. McMinimee & Zachary D. Schlichting, "Equitable Defenses in Will and Trust Litigation" (CLE in Colorado, Inc. Seminar, Sept. 11, 2015). The distinction can have important procedural ramifications. For example, is there a right to a jury trial (which is available in legal, but not equitable, actions)? Am. Family Mut. Ins. Co. v. DeWitt, 218 P.3d 318, 322 (Colo. 2009); see also McMinimee & Schlichting, supra. The entitlement to exemplary damages (which is available in legal, but not equitable, actions) is also impacted. A party's entitlement to attorney fees may also be affected. In Interest of Delluomo v. Cedarblade, 328 P.3d 291 (Colo. App. 2014).

Litigation involving trusts has generally been viewed as equitable actions, even when monetary damages have been sought.¹ "[I]n the realm of trust administration, courts enjoy broad statutory authority to order 'relief as the court deems appropriate to protect . . . the assets of the estate.'" In re O.C. Hoffman Family Trust, No. 18CA1535, 2019 Colo. App. LEXIS 2000 (Colo. App. Nov. 14, 2019) (unpublished). Equitable claims for relief, such as requests for accountings in breach of fiduciary duty litigation...