Colorado § 15-12-402 - Formal testacy or appointment proceedings - petition - contents.

§ 15-12-402. Formal testacy or appointment proceedings - petition - contents.

(1) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will must:

(a) Request an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;

(b) Contain the statements required for informal applications as stated in section 15-12-301 (2) and the statements required by section 15-12-301 (3); and

(c) State whether the original of the last will of the decedent, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is in the possession of the court or accompanies the petition.

(2) If the original will, or a copy of the decedent's original will certified by the state court administrator pursuant to article 23 of this title 15, is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.

(3) If a will has been lost or destroyed, or for any other reason is unavailable, and the fact of the execution thereof is established, as herein provided, and the contents thereof are likewise established to the satisfaction of the court, and the court is satisfied that the will has not been revoked by the testator, the court may admit the same to probate and record, as in other cases. In every such case the order admitting such will to probate shall set forth the contents of the will at length, and the names of the witnesses by whom the same was proved, and such order shall be recorded in the record of wills.

(4) A petition for adjudication of intestacy and appointment of an administrator in intestacy must request a judicial finding and order that the decedent left no will and determining the heirs, contain the statements required by section 15-12-301 (2) and (5), and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case the statements required by section 15-12-301 (5)(b) may be omitted.

Source: L. 73: R&RE, p. 1574, § 1. C.R.S. 1963: § 153-3-402. L. 79: (3) amended, p. 649, § 8, effective July 1. L. 2019: IP(1), (1)(c), and (2) amended, (HB 19-1229), ch. 252, p. 2446, § 4, effective January 1, 2023 (see editor's note).

Editor's note: HB 20-1368 amended the effective date of HB 19-1229 to change the date from January 1, 2021, to January 1, 2023. (See L. 2020, p. 1441.)

ANNOTATION

Law reviews. For article, "Trusts and Estates", see 30 Dicta 435 (1953). For article, "Evidence in Estate Proceedings", see 24 Rocky Mt. L. Rev. 437 (1952). For article, "A Potpourri of Probate Practice Aids", see 11 Colo. Law. 1850 (1982). For article, "Who's In Charge Here? Priority for Appointment as a Personal Representative in Colorado", see 51 Colo. Law. 48 (Mar. 2022).

Annotator's note. Since § 15-12-402 is similar to repealed § 153-5-28, C.R.S. 1963, § 152-5-29, CRS 53, CSA, C. 176, § 57, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The standards established in this section control whether a will may be admitted to probate. Although CRE 1003 and 1004 may allow for admission into evidence of duplicates in lieu of originals, when an original will is lost or destroyed, the standards specified in this section will control whether the will can be admitted to probate. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).

To establish a lost will under this section, the proponent must prove that such will has been lost or destroyed or is otherwise unavailable and that it was properly executed; that it was in existence at the time of the death of the testator; and its contents. Failure to prove any one of such elements results in denial of probate. Todd v. Rennick, 13 Colo. 546, 22 P. 898 (1889); Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934); Estate of Varnum v. Witt, 144 Colo. 422, 357 P.2d 370 (1960).

To prove the contents of a purported last will, the standard is that the proof must be "clear and strong". Estate of Varnum v. Witt, 144 Colo. 422, 357 P.2d 370 (1960).

Likewise, proof of the existence of the will should be clear and strong. Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934).

The statute unmistakably requires proof that such lost will or destroyed will was actually in existence at the time of the death of the testator. Bailey v. Kennedy, 162 Colo. 135, 425 P.2d 304 (1967).

Despite its loss a properly executed will remains in existence. A will once validly made and published remains a will, in the absence of a showing of intent to revoke, although the writing, the best evidence of it, is lost or destroyed; it is still in "existence" as that word is used in this section. Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934).

Court properly considered the issue of revocation where the will was missing. In the case of a missing or lost will, a court must be satisfied that a will has not been revoked by the testator before admitting a copy of the will to probate. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).

And subsection (3) provides the will proponent adequate notice that she is required to establish that a missing will has not been revoked. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).

No allegation of proper making, publication and declaration of will. In re Chance's Estate, 124 Colo. 436, 238 P.2d 879 (1951).

"Dependent relative revocation" not applicable in case of lost will. The doctrine of "dependent relative revocation", which makes the revocation of a will ineffective and entitles the copy to be probated, cannot be applied in this case because of the statute on lost or destroyed wills, and because the decedent tore up the 1963 will. Bailey v. Kennedy, 162 Colo. 135, 425 P.2d 304 (1967).

In the case of a missing or destroyed will, common law establishes a rebuttable presumption that the decedent destroyed the will with intent to revoke it. Because neither this section nor §15-12-407 addresses the burden of proof when a will is lost or destroyed, the common law presumption applies. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).

Presumption that unfound will was destroyed may be rebutted. The universally recognized presumption that a will that may have been in the testator's possession and cannot be found at his death was destroyed animo revocandi may be rebutted by evidence of his declarations tending to prove he believed the will to be in existence unrevoked, and that the loss or destruction of the will without the knowledge or consent of the testator may be inferred from such declarations without positive proof of loss or destruction, when diligent search and inquiry have failed to locate it in the places where it would most probably have been found if in physical existence. Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934).

When a will, last seen in the possession of the testatrix, cannot be found following her death, there is a presumption that the testatrix destroyed the will with the intent to revoke it, but this presumption may be rebutted by evidence of decedent's declarations tending to prove decedent believed the will to be in existence unrevoked. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Decedent's attorney was not incompetent to testify in proceeding to establish lost will although, as attorney for the estate, he had a financial interest in the estate. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Waiver of objection to competency of decedent's attorney to testify. Where at trial to establish lost will, the caveators did not object to the competency of decedent's attorney or to the admissibility of his testimony, and subsequently cross-examined him concerning his conversations with decedent pertaining to the lost will, the actions of the caveators constituted a waiver of their objection to the competency of the witness to testify concerning decedent's declarations. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Trial court's refusal to submit to jury instructions tendered by caveators in proceeding to establish lost will held not error. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Applied in Church of Jesus Christ of Latter Day Saints v. Tally, 654 P.2d 866 (Colo. App. 1982).