On What Grounds Can I Contest or Challenge a Will?

A will may be contested for a variety of reasons. There may be a dispute over its interpretation, a person may have multiple wills, or the health of the testator (a.k.a. the person who made the will) is at issue. In order to contest or challenge a will in Colorado you must have the legal right to do so. This legal right is called “standing,” and in Colorado only interested parties have standing to contest a will. An “interested party” in this context means someone who has been named as a beneficiary under the will, someone who would have inherited from the deceased if there was no will, or someone who has a potential legal stake in the deceased’s assets. This can include creditors and heirs of the deceased.

In addition to standing, there should also be valid grounds upon which a will may be contested. In Colorado, there are several reasons that an interested party will have standing to contest a will. Below we outline the main reasons that a will may be challenged or contested.

 

  • Lack of testamentary capacity

 

In Colorado, any person over the age of 18 legally has the mental capacity to make a will. The issue is whether the testator was of sound mind when they executed their will.

In order to challenge capacity, there should be evidence that the testator lacked it when the will was made. There is no requirement that the testator continue to have capacity after validly executing their will. The only time frame that matters is the time at which the will was executed.

To determine whether the testator had capacity, Colorado courts consider several factors including whether the testator understood that they were making a will, the extent and nature of their property, and how the will distributes their property and if that coincides with their intentions.

 

  • Undue Influence

 

Undue influence is a situation where someone was able to exert control over the testator to change their will due to their relationship with the testator. States vary in the requirements to satisfy a challenge on undue influence grounds. In Colorado, it’s considered undue influence when someone’s actions take away the free will of the testator, and as a result of their actions, the testator executes a will that has provisions they would not have included if they were not subject to undue influence. In certain situations, undue influence is presumed if the beneficiary accused of exerting it was in a confidential or fiduciary relationship (e.g. attorney-client) and was involved in the will’s preparation or execution.

 

  • Fraud

 

Fraud can occur in a number of situations. A person may commit fraud by lying to the testator in order to induce them to make or change a certain bequest in their favor in a will. They may also lie to a testator and lead them to believe that a document they are signing is a will they have already drafted but is instead something else.

Contesting a will is a unique and specialized process that is often confusing. Not only have you dealt with the death of a loved one, but now there is the added stress of litigation. At Hulbert & Associates we have the experience to help relieve your stress, to ensure that the desires of the decedent are carried out properly and with respect, and to guide you through the process. Contact us today to find out more about how we can help.

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Written by Lori Hulbert

Together the attorneys of the firm have nearly 30 years of experience in the fields of estate planning, estate and trust administration, estate and trust litigation, guardianships and conservatorships and civil litigation.