Colorado § 15-11-502 - Execution - witnessed or notarized wills - holographic wills.

§ 15-11-502. Execution - witnessed or notarized wills - holographic wills.

(1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be:

(a) In writing;

(b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and

(c) Either:

(I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or

(II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.

(2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

(3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.

(4) For purposes of this section, "conscious presence" requires physical proximity to the testator but not necessarily within testator's line of sight.

(5) For purposes of this part 5, "will" does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title.

Source: L. 94: Entire part R&RE, p. 997, § 3, effective July 1, 1995. L. 2001: (1)(c) amended, p. 886, § 1, effective June 1. L. 2009: (1) amended, (HB 09-1287), ch. 310, p. 1683, § 12, effective July 1, 2010. L. 2010: (5) added, (SB 10-199), ch. 374, p. 1750, § 9, effective July 1.

Editor's note: This section is similar to former §§ 15-11-502 and 15-11-503 as they existed prior to 1995.

Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101.

COMMENT

Subsection (a): Witnessed or Notarized Wills. Three formalities for execution of a witnessed or notarized will are imposed. Subsection (a)(1) requires the will to be in writing. Any reasonably permanent record is sufficient. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. i (1999).

Under subsection (a)(2), the testator must sign the will or some other individual must sign the testator's name in the testator's presence and by the testator's direction. If the latter procedure is followed, and someone else signs the testator's name, the so-called "conscious presence" test is codified, under which a signing is sufficient if it was done in the testator's conscious presence, i.e., within the range of the testator's senses such as hearing; the signing need not have occurred within the testator's line of sight. For application of the "conscious-presence" test, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. n (1999); Cunningham v. Cunningham, 83 N.W. 58 (Minn. 1900) (conscious-presence requirement held satisfied where "the signing was within the sound of the testator's voice; he knew what was being done ..."); Healy v. Bartless, 59 A. 617 (N.H. 1904) (individuals are in the decedent's conscious presence "whenever they are so near at hand that he is conscious of where they are and of what they are doing, through any of his senses, and where he can readily see them if he is so disposed."); Demaris' Estate, 110 P.2d 571 (Or. 1941) ("[W]e do not believe that sight is the only test of presence. We are convinced that any of the senses that a testator possesses, which enable him to know whether another is near at hand and what he is doing, may be employed by him in determining whether [an individual is] in his [conscious] presence ...").

Signing may be by mark, nickname, or initials, subject to the general rules relating to that which constitutes a "signature." See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. j (1999). There is no requirement that the testator "publish" the document as his or her will, or that he or she request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other. The testator may sign the will outside the presence of the witnesses, if he or she later acknowledges to the witnesses that the signature is his or hers (or that his or her name was signed by another) or that the document is his or her will. An acknowledgment need not be expressly stated, but can be inferred from the testator's conduct. Norton v. Georgia Railroad Bank & Tr. Co., 285 S.E.2d 910 (Ga. 1982).

There is no requirement that the testator's signature be at the end of the will; thus, if the testator writes his or her name in the body of the will and intends it to be his or her signature, the statute is satisfied. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmts. j & k (1999).

Subsection (a)(3) requires that the will either be (A) signed by at least two individuals, each of whom witnessed at least one of the following: (i) the signing of the will; (ii) the testator's acknowledgment of the signature; or (iii) the testator's acknowledgment of the will; or (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. Subparagraph (B) was added in 2008 in order to recognize the validity of notarized wills.

Under subsection (a)(3)(A), the witnesses must sign as witnesses (see, e.g., Mossler v. Johnson, 565 S.W.2d 952 (Tex. Civ.App. 1978)), and must sign within a reasonable time after having witnessed the testator's act of signing or acknowledgment. There is, however, no requirement that the witnesses sign before the testator's death. In a particular case, the reasonable-time requirement could be satisfied even if the witnesses sign after the testator's death.

Under subsection (a)(3)(B), a will, whether or not it is properly witnessed under subsection (a)(3)(A), can be acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. Note that a signature guarantee is not an acknowledgment before a notary public or other person authorized by law to take acknowledgments. The signature guarantee program, which is regulated by federal law, is designed to facilitate transactions relating to securities. See 17 C.F.R. § 240.17Ad-15.

Allowing notarized wills as an optional method of execution addresses cases that have begun to emerge in which the supervising attorney, with the client and all witnesses present, circulates one or more estate-planning documents for signature, and fails to notice that the client or one of the witnesses has unintentionally neglected to sign one of the documents. See, e.g., Dalk v. Allen, 774 So.2d 787 (Fla. Dist. Ct. App. 2000); Sisson v. Park Street Baptist Church, 24 E.T.R.2d 18 (Ont. Gen. Div. 1998). This often, but not always, arises when the attorney prepares multiple estate-planning documents — a will, a durable power of attorney, a health-care power of attorney, and perhaps a revocable trust. It is common practice, and sometimes required by state law, that the documents other than the will be notarized. It would reduce confusion and chance for error if all of these documents could be executed with the same formality.

In addition, lay people (and, sad to say, some lawyers) think that a will is valid if notarized, which is not true under non-UPC law. See, e.g., Estate of Saueressig, 136 P.3d 201 (Cal. 2006). In Estate of Hall, 51 P.3d 1134 (Mont. 2002), a notarized but otherwise unwitnessed will was upheld, but not under the pre-2008 version of Section 2-502, which did not authorize notarized wills. The will was upheld under the harmless-error rule of Section 2-503. There are also cases in which a testator went to his or her bank to get the will executed, and the bank's notary notarized the document, mistakenly thinking that notarization made the will valid. Cf., e.g., Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1985). Under non-UPC law, the will is usually held invalid in such cases, despite the lack of evidence raising any doubt that the will truly represented the decedent's wishes.

Other uniform acts affecting property or person do not require either attesting witnesses or notarization. See, e.g., Uniform Trust Code § 402(a)(2); Power of Attorney Act § 105; Uniform Health-Care Decisions Act § 2(f).

A will that does not meet the requirements of subsection (a) may be valid under subsection (b) as a holograph or under the harmless-error rule of Section 2-503.

Subsection (b): Holographic Wills. This subsection authorizes holographic wills. On holographic wills, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 (1999). Subsection (b) enables a testator to write his or her own will in handwriting. There need be no witnesses. The only requirement is that the signature and the material portions of the document be in the testator's handwriting.

By requiring only the "material portions of the document" to be in the testator's handwriting (rather than requiring, as some existing statutes do, that the will be "entirely" in the decedent's handwriting), a holograph may be valid even though immaterial parts such as date or introductory wording are printed, typed, or stamped.

A valid holograph can also be executed on a printed will form if the material portions of the document are handwritten. The fact, for example, that the will form contains printed language such as "I give, devise, and bequeath to _______" does not disqualify the document as a holographic will, as long as the testator fills out the remaining portion of the dispositive provision in his or her own hand.

Subsection (c): Extrinsic Evidence. Under subsection (c), testamentary intent can be shown by extrinsic evidence, including for holographic wills the printed, typed, or stamped portions of the form or document. Handwritten alterations, if signed, of a validly executed nonhandwritten will can operate as a holographic codicil to the will. If necessary, the handwritten codicil can derive meaning, and hence validity as a holographic codicil, from nonhandwritten portions of the document. See Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter's Note No. 4 to the Restatement as a decision that "reached a manifestly unjust result".

2008 Revisions. In 2008, this section was amended by adding subsection (a)(3)(B). Subsection (a)(3)(B) and its rationale are discussed in Waggoner, The UPC Authorizes Notarized Wills, 34 ACTEC J. 58 (2008).

Historical Note. This Comment was revised in 2008.

ANNOTATION

Law reviews. For note, "Control of Trust Property by the Settlor", see 11 Rocky Mt. L. Rev. 42 (1938). For article, "Family Law, Probate Law, and Constitutional Law", see 31 Dicta 471 (1954). For comment on Reed v. McLaughlin, appearing below, see 26 Rocky Mt. L. Rev. 337 (1954). For article on the necessity of attestation clause or proof of attestation, see 29 Rocky Mt. L. Rev. 475 (1957). For article, "The Sight and Sense Tests in Colorado", see 35 Dicta 114 (1958). For article, "Holographic and Nonconforming Wills: Dispensing With Formalities — Part I", see 31 Colo. Law. 57 (Dec. 2002). For article, "Holographic and Nonconforming Wills: Dispensing With Formalities — Part II", see 32 Colo. Law. 53 (Jan. 2003). For article, "Lights, Camera, Action — Video Will Executions", see 42 Colo. Law. 45 (Jan. 2013). For article, "Who's In Charge Here? Priority for Appointment as a Personal Representative in Colorado", see 51 Colo. Law. 48 (June 2022).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

The requirements of this section are plain. They are, to reiterate: The will must be written; it must be signed by the testator, or someone for him in his presence and by his direction; it must be signed or acknowledged by the testator in the presence of two or more witnesses; and the testator must request two persons to sign the instrument as witnesses. McGary v. Blakely, 127 Colo. 495, 258 P.2d 770 (1953).

A will not meeting the requirements of this section is void for all purposes. McGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953).

The formalities required for valid will execution require strict adherence in order to prevent fraud because statutes governing execution are designed to safeguard and protect the decedent's estate. In re Estate of Royal, 826 P.2d 1236 (Colo. 1992).

For a will, so far as execution goes, is an entirety, and if defective because not executed in accordance with the requirements of law, it is void for all purposes. Twilley v. Durkee, 72 Colo. 444, 211 P. 668 (1922).

With reference to wills made by residents of the state, the provisions of this section are mandatory. Reed v. McLaughlin, 128 Colo. 581, 265 P.2d 691 (1954).

Where testamentary capacity, sufficient witnessing, and a valid bequest are shown, a refusal to probate a will held error, regardless of whether a testamentary trust therein was valid or not. Frazier v. Frazier, 83 Colo. 188, 263 P. 413 (1927).

Court has duty as matter of law to hold will properly executed. Where proof of due execution has been made and no evidence presented to the contrary, it is the duty of the court to hold as a matter of law that the will was properly executed, and to remove that question from the jury's consideration. O'Brien v. Wallace, 145 Colo. 291, 359 P.2d 1029 (1961).

A will must be reduced to writing but its continued existence as a will should not be held to depend at all events upon the production and exhibition of the writing. Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934).

Attempted creation of a trust by will held invalid as depending on oral instructions for its execution, since such instructions given before or after the execution of a will are in violation of this section requiring wills to be in writing. Frazier v. Frazier, 83 Colo. 188, 263 P. 413 (1927).

What constitutes "presence". If in the act of attesting the will the witnesses are where the testator can see them if he desires, they are in his presence within the meaning of this section. Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913).

This section requires that the witnesses shall sign the will. This means that something more is required of witnesses than the mere placing of their names on the document. It requires an observation by the witnesses to see that the will was executed by the testator and that the testator had capacity to make the will. McGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953).

Witnesses must actually sign the will and may not substitute oral testimony to affirm testator's signature. In re Estate of Royal, 813 P.2d 790 (Colo. App. 1991), aff'd, 826 P.2d 1236 (Colo. 1992).

Will is valid despite failure of witnesses to sign on same page as testator. Although the witnesses' signatures do not appear on the same page as the signature of the testator, the witnesses did "subscribe" their names to the will and the will is valid. Additionally, all three witnesses testified as to the proper execution of the will in every essential element, therefore the will was properly admitted to probate. Brock v. Erickson, 28 Colo. App. 555, 475 P.2d 346 (1970).

Witnesses may attest to a will after the testator's death but only upon a showing of exceptional circumstances which made it impossible or extremely impractical for the witnesses to have signed the will before the testator's death. In re Estate of Royal, 813 P.2d 790 (Colo. App. 1991), aff'd, 826 P.2d 1236 (Colo. 1992).

Witnesses' signatures should be affixed to the document at least by the time the will becomes operative, namely the death of the testator. If the will speaks as of the date of the testator's death, it follows that the document should be complete at that time. In re Estate of Royal, 826 P.2d 1236 (Colo. 1992).

An attestation clause is prima facie evidence of the facts stated in such clause. Butcher v. Butcher, 21 Colo. App. 416, 122 P. 397 (1921); Lenahan v. White, 79 Colo. 347, 245 P. 711 (1926); Wehrkamp v. Burnett, 82 Colo. 5, 256 P. 630 (1927); Aquilini v. Chamblin, 94 Colo. 367, 30 P.2d 325 (1934); McGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953); Brock v. Erickson, 28 Colo. App. 555, 475 P.2d 346 (1970).

In the absence of an attestation clause, no presumption may be indulged as to due execution simply by the proof of signatures. If there is no attestation clause the facts of the execution may be shown by other evidence. McGary v. Blakeley, 127 Colo. 495, 258 P.2d 770 (1953).

Sufficient publication. The testator said that he understood and asked them to sign as witnesses to his will. That constituted a publication of the will in compliance with this section. Wehrkamp v. Burnett, 82 Colo. 5, 256 P. 630 (1927); Aquilini v. Chamblin, 94 Colo. 367, 30 P.2d 325 (1934).

Acknowledgment sufficient if testator clearly indicates that the instrument is his last will and testament. There was no evidence that the testator acknowledged that the writing was his last will and testament, as required by this section. But it is not necessary for testators to use the very words of this section, and they seldom do. If the testator, by word or deed, clearly indicates that the instrument is his last will and testament, it is sufficient. Aquilini v. Chamblin, 94 Colo. 367, 30 P.2d 325 (1934).

A will is void and not entitled to probate where it appears that the testator did not declare the writing to be his last will and testament, did not know its contents, and did not request the subscribing witnesses to attest the same. Wagner v. Heldt, 93 Colo. 442, 26 P.2d 813 (1933).

The provisions of this section, by force of the following section, are extended to codicils of wills. Int'l Trust Co. v. Anthony, 45 Colo. 474, 101 P. 781 (1909).

Thus a codicil attested by only one witness is without effect. Freeman v. Hart, 61 Colo. 455, 158 P. 305 (1916).

And the same is true where one witness did not sign in the presence of the testator. A codicil, the execution of which was witnessed by two witnesses, one of whom signed it in the testator's presence and the other at a later day, and not in his presence, will be rejected. Int'l Trust Co. v. Anthony, 45 Colo. 474, 101 P. 781 (1909).

No requirement that deed comply with statutory requirements of a will. First Nat'l Bank v. Groussman, 29 Colo. App. 215, 483 P.2d 398 (1971).

Testamentary intent required. To be a holographic will, the evidence must establish that the decedent intended the writing itself to make a testamentary disposition of decedent's property. In re Estate of Fegley, 42 Colo. App. 47, 589 P.2d 80 (1978); Matter of Estate of Olschansky, 735 P.2d 927 (Colo. App. 1987).

The informal character of the decedent's letter as well as the statement she would leave something for her granddaughter reflected that the decedent did not intend the letter to make a testamentary disposition. Matter of Estate of Olschansky, 735 P.2d 927 (Colo. App. 1987).

Circumstantial evidence used in proving testator's signature. Where owing to the failure of the memory of the subscribing witnesses it is impossible to obtain direct testimony that the testator's signature was upon the paper when the witnesses subscribed it, circumstances may be resorted to. In re Carey's Estate, 56 Colo. 77, 136 P. 1175 (1913).

Burden is on contestants to overthrow will duly admitted to probate. The weight of authority is to the effect that, in a contest of a will which has theretofore been duly admitted to probate, the burden of proof is on the contestant to establish his grounds of contest. The probate is held to be prima facie evidence of the due attestation, execution, and validity of the will, and the burden is upon the contestants to overthrow the will. Aquilini v. Chamblin, 94 Colo. 367, 30 P.2d 325 (1934).

Burden is on proponent who presents will for probate to show due execution. Upon the proponent who presents a will for probate rests the burden of proof to show its execution in accordance with the requirements of the law. Snodgrass v. Smith, 42 Colo. 60, 94 P. 312 (1908); Twilley v. Durkee, 72 Colo. 444, 211 P. 668 (1922); O'Brien v. Wallace, 145 Colo. 291, 359 P.2d 1029 (1961).

Onus of proof. Where a will has been executed and witnessed under such circumstances that it is presumed the testator knew its contents, the onus of proving the contrary is upon him who alleges it. In re Shapter's Estate, 35 Colo. 578, 85 P. 688 (1906); Kavanagh v. Jamison, 79 Colo. 115, 244 P. 476 (1926).

Testator's signature creates presumption of his awareness of its contents. Ordinarily, where the will has been executed under the formalities prescribed by law, and proof thereof has been made by the witnesses, the testator's bare signature to the will is taken as proof thereof, and it will be presumed that the will had been read by or to him, and that he was aware of its contents. Snodgrass v. Smith, 42 Colo. 60, 94 P. 312 (1908); Kavanagh v. Jamison, 79 Colo. 115, 244 P. 476 (1926).

Signature not required by a cross-out to effectuate a partial revocation. When a holographic will was properly executed, no additional signature or acknowledgment is necessary to allow compliance with a cross-out if the testator's intent has been proved by clear and convincing evidence. In re Estate of Schumacher, 253 P.3d 1280 (Colo. App. 2011).

Agreement as to disposition of joint bank account. Where testator placed money in joint bank account with another with agreement that at testator's death the other would withdraw money and give it to testator's beneficiaries, this agreement failed to comply with provisions of this section and testator's executor could recover money in action for conversion. Urbancich v. Jersin, 123 Colo. 88, 226 P.2d 316 (1950).

Probate not denied where portions are illegible or missing. A holographic will may not be denied probate merely because portions of the date not at issue are abbreviated, missing, or illegible, where the critical elements of the date are certain and unambiguous. Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).

Handwritten list found in safe deposit box of deceased may be found to be a valid holographic codicil to will if signature and material provisions are in handwriting of deceased, but evidence must show the writing was executed with testamentary intent and evidence failed to make such showing. Matter of Estate of Harrington, 850 P.2d 158 (Colo. App. 1993).

Applied in Friedholm v. Fegley, 42 Colo. App. 47, 589 P.2d 80 (1978); Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).