Breeden v. Stone

• Citation: 992 P.2d 1167
• Decision Date: 18 January 2000
• Docket Number: No. 98SC570.,98SC570.
• Parties: In the Matter of the Estate of Spicer H. Breeden, Deceased: Holly Breeden Connell, and Vic E. BREEDEN, III, Petitioners, v. Sydney STONE, Respondent.
• Court: Supreme Court of Colorado

992 P.2d 1167

In the Matter of the Estate of Spicer H. Breeden, Deceased:

Holly Breeden Connell, and Vic E. BREEDEN, III, Petitioners, v. Sydney STONE, Respondent.

No. 98SC570.

Supreme Court of Colorado, En Banc.

January 18, 2000.

Semler & Associates, P.C., R. Parker Semler, Denver, Colorado, Attorneys for Petitioners.

Gelt, Fleishman & Sterling, P.C., Dana E. Steele, Harry W. Sterling, Denver, Colorado, Attorneys for Respondent.

Justice RICE delivered the Opinion of the Court.

This court granted certiorari to address two issues raised by Petitioners Holly Breeden Connell and Vic E. Breeden, III (Petitioners).¹ First, Petitioners argue that the probate court incorrectly applied both the "insane delusion" and the Cunningham² elements tests for testamentary capacity and improperly merged the insane delusion test with the Cunningham elements test. Second, Petitioners challenge whether the probate court erred when it denied their motion to dismiss Vic E. Breeden (Breeden Sr.) and Holly Breeden Connell (Connell) as parties based on an improper application of the Dead Man's Statute.³ We now hold that the probate court correctly applied the two exclusive tests for testamentary capacity to find that the testator, Spicer Breeden, was of sound mind at the time he executed the holographic will. In addition, we hold that the probate court did not abuse its discretion when it denied Petitioners' motion to dismiss Breeden Sr. and Connell as parties, thus precluding their testimony under the Dead Man's Statute.

I. FACTS AND PROCEDURAL HISTORY

This case involves a contested probate of a handwritten (holographic) will executed by Spicer Breeden, the decedent. Mr. Breeden died in his home on March 19, 1996, from a self-inflicted gunshot wound two days after he was involved in a highly publicized hit-and-run accident that killed the driver of the other vehicle.

Upon entering the decedent's home following his suicide, the Denver police discovered on his desk a handwritten document that read: "I want everything I have to go to Sydney Stone— `houses,' `jewelwry,' [sic] stocks[,] bonds, cloths [sic]. P.S. I was Not Driving the Vehical— [sic]." At the bottom of the handwritten document, the decedent printed, "SPICER H. BREEDEN" and signed beneath his printed name.

Sydney Stone (Respondent) offered the handwritten document for probate as the holographic will of the decedent. The decedent had previously executed a formal will in 1991 and a holographic codicil leaving his estate to persons other than Respondent. Several individuals filed objections to the holographic will, including Petitioners, who alleged lack of testamentary capacity.⁴

On September 3-6, 1996, a hearing was held on the petition for formal probate. Both parties presented evidence in the form of testimony of factual and expert witnesses, handwriting samples, and other documents. On September 26, 1996, the probate court formally admitted the decedent's holographic will to probate. The court made several findings based on the evidence presented. First, the court found that the decedent used cocaine and alcohol for several years prior to his death, based on the testimony of his friends Jennifer Chelwick and Michael Crow. Relying on the autopsy report and testimony from the decedent's sister, the court found that the decedent used alcohol and cocaine on the evening of March 17 and between March 17 and 19, and that substantial alcohol was consumed proximate to the time of death. Based on the testimony of a number of the decedent's friends, the court found that the decedent's moods were alternately euphoric, fearful, and depressed, and that he was excessively worried about threats against himself and his dog from government agents, friends, and others.

In addition, the probate court considered the testimony of a number of expert witnesses, including two forensic toxicologists, two forensic psychiatrists, a forensic document examiner, and two handwriting experts. After considering conflicting evidence from the various expert witnesses, the court concluded that the decedent possessed the motor skills necessary to write his will and that his handwriting on the holographic will was unremarkable when compared to other writing exemplars. The court also considered the testimony of the decedent's friends Ken McSpadden and Rick Eagan, who testified that in the two weeks prior to his death, the decedent had indicated to each of them in separate conversations that he did not intend to leave his estate to his family.⁵

After considering the evidence, the probate court found that Petitioners did not prove by a preponderance of the evidence that, because of the decedent's chronic use of alcohol and drugs or their use between March 17 and 19, he was not of sound mind when he executed the holographic will. In addition, the probate court held that the stress and anxiety that compelled the decedent to commit suicide did not deprive him of testamentary capacity. The court also found that the decedent's insane delusions regarding his friends, government agencies, and others, did not affect or influence the disposition of his property. In reaching the conclusion that the decedent was of sound mind at the time he executed the will, the probate court relied on the will itself, which evidenced a sufficient understanding of the general nature of his property and the disposition under the will, the testimony of two doctors regarding the decedent's motor skills at the time he wrote the will, evidence that the decedent had omitted his father and sister from his will in the past, and testimony from two friends that indicated the decedent had been considering revising his will in the future.

Petitioners appealed to the court of appeals, asserting that the probate court erred by applying and merging both tests for sound mind contained in Colorado Jury Instruction 34:9 and by refusing to dismiss Connell and Breeden Sr. as parties to the case, thus precluding their testimony under the Dead Man's Statute. The court of appeals affirmed the decision of the probate court, holding that the probate court order, when read in its entirety, indicated that the probate court correctly applied the appropriate tests for sound mind and correctly applied the Dead Man's Statute to find that Holly Breeden Connell and Vic E. Breeden should not be dismissed as parties. See In re Breeden, No. 96CA2012 (Colo.App. July 2, 1998) (not selected for official publication).

We granted certiorari to address whether the probate court correctly applied the insane delusion and Cunningham elements tests and whether the probate court correctly denied Petitioners' motion to dismiss Connell and Breeden Sr. as parties.⁶

II. TESTAMENTARY CAPACITY

Underlying Colorado's law of wills is the fundamental concept of freedom of testation; namely that a testator "may dispose of his property as he pleases, and that [he] may indulge his prejudice against his relations and in favor of strangers, and that, if he does so, it is no objection to his will." Lehman v. Lindenmeyer, 48 Colo. 305, 313, 109 P. 956, 959 (1909). This principle, however, is subject to the requirement that the maker of the will possess testamentary capacity at the time he executes the will. A person has testamentary capacity if he is an "individual eighteen or more years of age who is of sound mind." § 15-11-501, 5 C.R.S. (1999).

Until 1973, the proponents of a will assumed the burden of proving that the testator had testamentary capacity at the time he executed a will. However, in 1973, the legislature shifted this burden to the contestants of a will. See Ch. 451, sec. 1, § 153-13-407, 1973 Colo. Sess. Laws 1538, 1576 (codified as amended at § 15-12-407, 5 C.R.S. (1999)). Under section 15-12-407, once a proponent of a will has offered prima facie proof that the will was duly executed, any contestant then assumes the burden of proving a lack of testamentary capacity, including a lack of sound mind, by a preponderance of the evidence. See id.; see also In re Estate of Olschansky, 735 P.2d 927, 929 (Colo.App.1987)

; In re Estate of Grobman, 635 P.2d 231, 233 (Colo.App.1981). The issue of what constitutes sound mind has developed along two separate lines of inquiry, summarized below.

A. The Cunningham Test

We initially defined sound mind as having sufficient understanding regarding "the extent and value of [one's] property, the number and names of the persons who are the natural objects of [one's] bounty, their deserts with reference to their conduct and treatment toward [oneself], their capacity and necessity, and that [one] shall have sufficient active memory to retain all of these facts in [one's] mind long enough to have [one's] will prepared and executed." Lehman, 48 Colo. at 312, 109 P. at 958.

After Lehman, this court further refined the test for sound mind in 1953 in the landmark case Cunningham v. Stender, when we held that mental capacity to make a will requires that: (1) the testator understands the nature of her act; (2) she knows the extent of her property; (3) she understands the proposed testamentary disposition; (4) she knows the natural objects of her bounty; and (5) the will represents her wishes. 127 Colo. 293, 301, 255 P.2d 977, 981-82 (1953).

B. The Insane Delusion Test

This court has also held that a person who was suffering from an insane delusion at the time he executed the will may lack testamentary capacity. We first defined an insane delusion in 1924 as "a persistent belief in that which has no existence in fact, and which is adhered to against all evidence." In re Cole's Estate, 75 Colo. 264, 269, 226 P. 143, 145 (1924). We held that a party asserting that a testator was suffering from an insane delusion must meet the burden of showing that the testator suffered from such delusion. See id.

We also have addressed the issue of the causal relationship necessary between an individual's insane delusion and his capacity to contract. See ...