This legal article is written as an outline regarding the possible arguments that can be made to challenge a will.
There are several possible claims for relief in a contest of a will. Those claims are lack of capacity, insane delusion, undue influence, fraud, duress, mistake, or revocation. Each of these claims must be proved by a preponderance of the evidence. Estate of Romero, 126 P.3d 238, 230-31 (Colo. App. 2006). The most common are lack of capacity and undue influence.
(1) Lack of Capacity:
The Colorado Supreme Court created a five factor test to determine capacity in the landmark case of Cunningham v. Stender. Once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant then assumes the burden of proving the lack of testamentary capacity, including a lack of sound mind. Estate of Breeden, 992 P.2d 1167, 1171 (Colo. 2000).
In order to have mental capacity to make a will the following five factors must be proved by a preponderance of the evidence: (1) the testator understands the nature of her act; (2) she knows the extent of her property; (3) she understands the proposed testamentary disposition; (4) she knows the natural objects of her bounty; and (5) the will represents her wishes. Id. (citing Cummingham v. Stender, 255 P.2d 977, 981-82 (Colo. 1953)).
This test is most commonly applied to cases in which the objector is arguing that the testator lacked general capacity due to a number of possible causes such as mental illness, physical infirmity, senile dementia, and general insanity. However, it is important to note that a physical illness alone is insufficient to render a person incapable. See, White v. White, 368 P.2d 417, 419 (Colo. 1962) (holding that where there is no evidence that the testator did not understand the nature of the transaction, physical illness is insufficient to render the testator incapacitated to make a will).
Further, a perfect memory is not an element of testamentary capacity. See, Estate of Romero at 231. For example, in Estate of Breeden, the testator indexed all major categories of his property which was sufficient enough to meet the second factor of the Cunningham test. Estate of Breeden at 1173. The testator also does not need to know the true value of his property. Estate of Romero at 231-32.
The use of sedative drugs may affect the outcome of the application of the Cunningham test. In Allen v. Rentfro, the Colorado Supreme Court determined that where the testator took sedative drugs several hours before he executed a will it was insufficient to enter a judgment denying probate of the will. 79 P.2d 1042, 1043-44 (Colo. 1938). The Court’s reasoning was that the testator was given only 1/8 grain of the drug and that expert witnesses testified that this amount was insufficient to affect the testator’s clearness of mind given his body type and weight. Id. at 1043. Further, the Court also took into consideration the fact that the medicine was administered by a health care professional, and not any individual interested in the outcome of the will. Id. at 1044. The Court also took into consideration the fact that the interested party did not speak a single word while the testator was writing down his will. Id. at 1043.
Further, additional evidence may be required when a signature and cross-mark are used to execute a will. For example, in Estate of Stitzer, Ms. Stitzer had difficultly holding her pencil due to her illness (leukemia) and make a cross to symbolize her name with the assistance of her un-interested nurse holding her hand steady. 68 P.2d 561, 562 (Colo. 1937). Several un-interested witnesses testified that throughout the entire day Ms. Stitzer signed the will, she was of sound mind. Id. The Court relied heavily on this testimony, dismissing an expert’s testimony based on hypotheticals, and ruled that there was no evidence showing Ms. Stitzer did not intend her cross-mark to be an authentication of her will. Id. at 563.
(2) Undue Influence:
Undue Influence may be proved through a rebuttal presumption. Undue influence means words or conduct, or both, which, at the time of the making of the will deprived the person making the will of her free choice and caused the person making the will to make it or part of it differently than she otherwise would have. See, CJI-Civ 34:14. Undue influence cannot be inferred solely because one or more persons may have had a motive or an opportunity to gain influence. See, CJI-Civ 34:15. Influence gained by reason of love, affection, or kindness is not undue influence alone. See, CJI-Civ 34:15. Absent evidence that a beneficiary was actively concerned with the preparation and execution of the will, he or she will not be presumed to have exercised undue influence over the testator. Estate of Romero at 233.
For example, where a beneficiary was in a confidential or fiduciary relationship with the decedent, when a person is a beneficiary under a will, was in a confidential or fiduciary relationship to the decedent at the time of the preparation or execution of the will, and was in some way actively involved in the preparation or signing of the will, then the law presumes that the will was signed under undue influence. See, CJI-Civ 34:16.
A confidential relationship exists whenever one person gains the trust and confidence of the other person by acting or pretending to act for the benefit or interest of the other and as a result is placed in a position to exercise influence and control. See, CJI-Civ 34:18. See also, In re Marriage of Page, 70 P.3d 579 (Colo. App. 2003). A fiduciary relationship exists whenever one person is entrusted to act for the benefit of or in the interests of another and has the legal authority to do so. See, CJI-Civ 26:2.
A rebuttal presumption shifts the burden to the party against whom it is raised and if that burden is not met will establish the presumed facts as a matter of law. See, Kruger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009). Evidence used for rebuttal may include testimony to show the intent of the decedent. See, Kruger v. Ary at 1153.
Once the rebuttal presumption of undue influence has been sufficiently rebutted, the presumption does not continue. Id. If the party seeking to uphold the will’s conveyance has rebutted, the questions of the influence on the testator then require resolution as a matter of fact. Id. at 1156. Though the rebuttable presumption does not continue in a case once rebutted, a permissible inference of the presumed facts still remains and instructions to the jury are properly given on this point. Id. The jury may still consider the presumption in making its determination as a matter of fact.
