Colorado will contests: testamentary capacity and undue influence

Unfortunately, sometimes the circumstances surrounding the writing and execution of a will do not meet the requirements of Colorado law for creating a valid will. When a person with an interest in the will maker's estate suspects that requirements have not been met, Colorado law allows that person to bring a lawsuit challenging the will's validity, called a will contest.

Two bases on which a will could be found invalid are lack of testamentary capacity and undue influence. Both of these grounds relate to the state of mind of the will maker, also called the testator, and are often at issue when testators are elderly, but not always, depending on the circumstances.

Testamentary capacity

Testamentary capacity historically asks the question whether a testator was of sound mind when executing his or her will. The question of testamentary capacity is different than whether someone has mental illness or a debilitating physical disease, is under guardianship or has been found incompetent for other legal purposes. While all of these facts may be relevant to the question of testamentary capacity, the level of understanding needed for sound mind to make a will is more basic.

The Colorado court will focus on the state of the testator's mind at the time of making the will. The question is whether he or she understood:

  • That he or she was executing a will
  • The effect of the act of making a will
  • The nature and amount of property he or she owns, in a general sense
  • How the will disposes of the property and that it is in accord with the testator's intentions

Lack of testamentary capacity can also be found when the testator has an insane delusion, but only if the delusion significantly impacts the writing or execution of the will.

Undue influence

A will is the product of undue influence under Colorado law when the actions of another person deprive the testator of free will, such as through duress or coercion, and the person's behavior causes the testator to include provisions in the will that are different than he or she would otherwise have chosen to include. Sometimes cases of undue influence involve relationships between testator and people of influence that are confidential or fiduciary.

Colorado law also provides additional grounds for contesting a will such as fraud or improper execution. Whatever the basis, this area of law is extremely complex and legal counsel should be sought for guidance and representation, whether challenging or defending a will.

The attorneys at M Kent Olsen, with offices in Denver, Arvada and Parker, represent clients throughout the state of Colorado in will contests and a wide array of estate planning and probate matters.