Colorado § 15-12-413 - Formal testacy proceedings - vacation of order for other cause.

§ 15-12-413. Formal testacy proceedings - vacation of order for other cause.

For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.

Source: L. 73: R&RE, p. 1578, § 1. C.R.S. 1963: § 153-3-413.

ANNOTATION

Analogous to motion to set aside default judgment. Where there has been no trial of any issues presented upon the pleadings, a motion to vacate an order admitting a will to probate is analogous to a motion to set aside a default judgment for good cause shown under C.R.C.P. 55(c) and 60(b). Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982).

Criteria to be utilized by a court in ruling on a motion to set aside a default judgment include whether the neglect that resulted in entry of judgment by default was excusable, whether the moving party has alleged a meritorious defense, and whether relief from the challenged order would be consistent with equitable considerations, such as the protection of action taken in reliance on the order and the prevention of prejudice by reason of evidence lost or impaired by the passage of time. Craig v. Rider, 651 P.2d 397 (Colo. 1982).

Excusable neglect sufficient to vacate an order results from circumstances which would cause a reasonably careful person to neglect a duty, and the issue of negligence is determined by the trier of fact. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982).

Meritorious defense alone insufficient. A party may not have a judgment vacated solely upon an allegation of the existence of a meritorious defense. Craig v. Rider, 628 P.2d 623 (Colo. App. 1980), rev'd on other grounds, 651 P.2d 397 (Colo. 1982).

A movant must support a claim of meritorious defense by averments of fact, not simply legal conclusions. The factual allegations must be set forth with sufficient fullness and particularity to show that a defense is substantial, not technical; meritorious, not frivolous; and that it may change the result upon trial. Craig v. Rider, 651 P.2d 397 (Colo. 1982).

Burden of proof. The party seeking relief has the burden of establishing his grounds by clear, strong and satisfactory proof. Craig v. Rider, 651 P.2d 397 (Colo. 1982).

Regardless of good cause for delay in filing challenge to formal probate orders, challenges filed after the time allowed by this section are barred. Matter of Estate of Anderson, 727 P.2d 867 (Colo. App. 1986).