PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS

• Jurisdiction: Colorado

PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS

■ 15-11-501. Who may make a will. An individual eighteen or more years of age who is of sound mind may make a will.

Source: L. 94: Entire part R&RE, p. 997, § 3, effective July 1, 1995.

Editor's note: This section is similar to former § 15-11-501 as it existed prior to 1995.

ANNOTATION

Law reviews. For note, "A Survey of the Colorado Torrens Act", see 5 Rocky Mt. L. Rev. 149 (1933). For note, "Some Problems Relating to Testamentary Witnesses", see 23 Rocky Mt. L. Rev. 458 (1951). For article, "Transmissibility of Future Interests in Colorado", see 27 Rocky Mt. L. Rev. 1 (1954). For article on will drafting, see 27 Rocky Mt. L. Rev. 306 (1955). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Will Execution Ceremonies: Securing a Client's Last Wishes", see 23 Colo. Law. 47 (1994). For article, "Legal Guidelines and Methods for Evaluating Capacity", see 32 Colo. Law. 65 (June 2003). For article, "Anatomy of an Undue Influence Case", see 42 Colo. Law. 55 (April 2013).

Annotator's note. Since § 15-11-501 is similar to repealed § 152-5-2, CRS 53, CSA, C. 176, § 36, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

A testator's soundness of mind may be evaluated under either the test set forth in Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953), or the insane delusion test. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

The test of testamentary capacity is a positive showing that at the time of executing the will, the testator understood the nature and extent of his property, understood the effect of the proposed testamentary disposition, knew the natural objects of his bounty, and that the proposed will represented his wishes. Lehman v. Lindenmeyer, 48 Colo. 305, 109 P. 956 (1910); Cunningham v. Stender, 127 Colo. 293, 255 P.2d 977 (1953); In re Estate of Scott, 119 P.3d 511 (Colo. App. 2004), aff'd, 136 P.3d 892 (Colo. 2006).

Testamentary capacity consists of mentality and memory sufficient to understand intelligently the nature and purpose of the transaction, to comprehend generally the nature and extent of property to be disposed of, to remember who are the natural objects of the testator's bounty, and to understand the nature and effect of the desired disposition. Columbia Sav. & Loan Ass'n v. Carpenter, 33 Colo. App. 360, 521 P.2d 1299 (1974), rev'd on other grounds sub nom. Judkins v. Carpenter, 189 Colo. 95, 537 P.2d 737 (1975).

An individual lacks testamentary capacity under the insane delusion test when he or she suffers from an insane delusion that materially affects the disposition of the will. Breeden v. Stone, 992 P.2d 1167 (Colo. 2000); In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

An insane delusion is a persistent belief in something that has no existence in fact, which belief is adhered to in spite of all evidence to the contrary. Breeden v. Stone, 992 P.2d 1167 (Colo. 2000); In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

A contestant may challenge a testator's soundness of mind based on both or either of the Cunningham and insane delusion tests. Breeden v. Stone, 992 P.2d 1167 (Colo. 2000).

Testamentary capacity is a matter of fact to be determined by the trial court. Scott v. Leonard, 117 Colo. 54, 184 P.2d 138 (1947).

Testator held to be of sound mind when evidence reveals he had not been drinking at time will executed. In re Piercen's Estate, 118 Colo. 264, 195 P.2d 725 (1948).

Contractual capacity and testamentary capacity are the same. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946); Breeden v. Stone, 992 P.2d 1167 (Colo. 2000); In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Symptoms of senile dementia prior to making a will are not conclusive of incapacity. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946).

Likewise, an adjudication of unsoundness of mind and the appointment of a guardian is not conclusive evidence of testamentary incapacity, although the guardianship existed at the time the will was executed. In re McGrove's Estate, 106 Colo. 69, 101 P.2d 25 (1940).

Findings that warrant appointment of a guardian or conservator do not equate to a determination of testamentary incapacity. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Effect of § 15-14-409, appointment of a conservator or guardianship, on testamentary capacity. Section 15-14-409 specifically provides that the appointment of a conservator or the entry of another protective order is not a determination of decedent's testamentary capacity. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

In addition, § 28-5-219 provides that neither the fact that a person has been rated incompetent by the veterans administration nor the fact that a guardian has been appointed for the person shall be construed as a legal adjudication of insanity or mental incompetency. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Testator held not to be mentally incapacitated at time will executed by reason of drugs administered. In re Rentfro's Estate, 102 Colo. 400, 79 P.2d 1042 (1938).

Disinheritance of son by virtue of will does not indicate lack of testamentary capacity. Since one making a will is not bound to dispose of his property according to the rules of intestate succession, the fact that a testatrix practically disinherited her son in her will is no reason for regarding her as lacking testamentary capacity. In re Cole's Estate, 75 Colo. 264, 226 P. 143 (1924).

Burden of proving want of testamentary capacity is on proponent of will. In re Roeber's Estate, 70 Colo. 196, 199 P. 481 (1921).

Burden of proof of lack of testamentary capacity. Once the proponent of a holographic will has offered prima facie proof that it was duly executed, the contestant must bear the burden of introducing prima facie evidence that the person who executed the will lacked testamentary capacity. Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).

Effect of § 15-12-407 on burden of proof. Enactment of § 15-12-407 changes the long-established Colorado rule that the proponent of a will has the burden of proof and persuasion with regard to testamentary capacity. Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).

For testatrix's mental capacity to direct making and execution of will, see In re Stitzer's Estate, 100 Colo. 521, 68 P.2d 561 (1937).

The fact that the testator believed the will contestant was not his son does not justify a conclusion of mental incompetency, even though for years the testator treated and recognized him as a son. Miller v. Weston, 67 Colo. 534, 189 P. 610 (1920).

A testator's preference to a niece or nephew, or even to a stranger, creates no suspicion as to his mental capacity despite the fact that he thereby disinherits brothers and sisters or even children. Nelson v. Nelson, 27 Colo. App. 104, 146 P. 1079 (1915).

Decedent's lack of knowledge of the actual value of estate is not, by itself, proof of lack of testamentary capacity. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Decedent's failure to accurately estimate the value of estate does not, in itself, amount to an insane delusion. The court found that decedent would not have left a larger bequest to the contestants even if decedent had been aware of the actual value of his or her estate. In re Estate of Romero, 126 P.3d 228 (Colo. App. 2005).

Evidence of testamentary capacity. If the testamentary disposition is consistent with the testator's situation and in congruity with his affections and previous declarations and if the disposition might have been expected from one so situated, this is rational and legal evidence of testamentary capacity. In re Shapter's Estate, 35 Colo. 578, 85 P. 688 (1905).

In order to prove that a testator is not possessed of sufficient mental capacity to execute a valid will, evidence offered has to be calculated to establish his mental incapacity at the time of the will's execution. In re Estate of Southwick v. First Nat'l Bank, 33 Colo. App. 86, 515 P.2d 484 (1973).

Testamentary incapacity to execute a valid will on a given day may be proven by evidence of incompetency at times prior to the date of execution. In re Estate of Southwick v. First Nat'l Bank, 33 Colo. App. 86, 515 P.2d 484 (1973).

Expert opinion evidence describing mental incapacity at a time prior to the execution of a will, if not too remote in time, provides an inference, the weight of which is left to the trier of fact, that the testator continued to be incompetent at the date of the will's execution, and the admissibility of such evidence is largely within the discretion of the trial court. In re Estate of Southwick v. First Nat'l Bank, 33 Colo. App. 86, 515 P.2d 484 (1973).

Probate court erred when it denied proponent's motion for partial summary judgment regarding the decedent's testamentary capacity at the time he or she executed the second codicil since decedent's testamentary capacity was a question of fact that needed to be determined by application of the Cunningham test. Proponent's pleadings submitted evidence that satisfied each element of the Cunningham test. The physician's letter submitted by the objector referred to a remote time 21 months prior to the execution of the second codicil and did not address any of the elements of the Cunningham test and therefore was insufficient to create a genuine issue of material fact. In re Estate of Scott, 119 P.3d 511 (Colo. App. 2004), aff'd, 136 P.3d 892 (Colo. 2006).

For evidence of lack of testamentary capacity, see In re D'Avignon's Will, 12 Colo. App. 489, 55 P. 936 (1899).

For cases in which undue influence by proponent of will is submitted as grounds for will's invalidity, see Gehm v. Brown, 125 Colo. 555, 245 P.2d 865 (1952); Igo v. Marshall, 140 Colo. 560, 345 P.2d 724 (1961)...