Colorado § 15-12-406 - Formal testacy proceedings - contested cases.

§ 15-12-406. Formal testacy proceedings - contested cases.

(1) In a contested case in which the proper execution of a will is at issue, the following rules apply:

(a) If the will is self-proved pursuant to section 15-11-504, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.

(b) If the will is notarized pursuant to section 15-11-502 (1)(c)(II), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.

(c) If the will is witnessed pursuant to section 15-11-502 (1)(c)(I), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.

Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-406. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1687, § 16, effective July 1, 2010.

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

COMMENT

2008 Revisions. This section, which applies in a contested case in which the proper execution of a will is at issue, was substantially revised and clarified in 2008.

Self-Proved Wills: Paragraph (1) provides that a will that is self-proved pursuant to Section 2-504 satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. Paragraph (1) does not preclude evidence of undue influence, lack of testamentary capacity, revocation, or any relevant evidence that the testator was unaware of the contents of the document.

Notarized Wills: Paragraph (2) provides that if the will is notarized pursuant to Section 2-502(a)(3)(B), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.

Witnessed Wills: Paragraph (3) provides that if the will is witnessed pursuant to Section 2-502(a)(3)(A), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred. For further explanation of the effect of an attestation clause, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. q (1999).

Historical Note. This Comment was revised in 2008.

ANNOTATION

Law reviews. For article, "In Defense of H.B. 109 — Re Serving Notice Before a Witness's Deposition May Be Taken", see 22 Dicta 152 (1945). For article, "Trusts and Estates", see 30 Dicta 435 (1953). For article on the necessity of attestation clause or proof of attestation, see 29 Rocky Mt. L. Rev. 475 (1957). For article, "One Year Review of Evidence", see 35 Dicta 44 (1958).

Annotator's note. Cases relevant to § 15-12-406 decided prior to its earliest source, § 153-3-406, C.R.S. 1963, have been included in the annotations to this section.

Under the provisions of this section it is the duty of witnesses to a will to appear when duly summoned and testify concerning the execution and validity of the same. In re Ainsworth's Estate, 102 Colo. 392, 79 P.2d 1045 (1938).

Trial judge may properly interrogate witnesses. In a will contest proceeding, deficiencies of proof being evident from the answers of witnesses given in response to questions by counsel, not only is it proper for the trial judge to interrogate such witnesses on his own motion, but he would be derelict in his duty had he failed to do so, in view of the provisions of this section. In re Livingston's Estate, 102 Colo. 148, 77 P.2d 649 (1938).