Grobman's Estate, Matter of

Decision Date07 May 1981
Docket NumberNo. 79CA0114,79CA0114
Citation635 P.2d 231
PartiesIn the Matter of the ESTATE OF Rosa GROBMAN, a/k/a Rose Grobman, Deceased. Louisa NUNEZ, Petitioner-Appellant, v. Edward A. JERSIN, Petitioner-Appellee. . I
CourtColorado Court of Appeals

Henry, Cockrell, Quinn & Creighton, Richard C. Cockrell, Denver, for petitioner-appellant.

Quiat, Dice & Associates, Michael R. Dice, William L. Rice, Denver, for petitioner-appellee.

STERNBERG, Judge.

This will contest presents two issues: the burden of proof of testamentary capacity under § 15-12-407, C.R.S.1973, and the applicable rules for the construction of a holographic will pursuant to § 15-11-503, C.R.S.1973.

On May 5, 1969, Rosa Grobman executed a formal, attested will nominating Edward A. Jersin, the appellee, as executor of her estate. At the time of her death, this will had the effect of devising all of her property to decedent's named distant relatives in Austria.

In 1976, she prepared a handwritten document which appellant Louisa Nunez, a neighbor who had befriended the decedent in her last years, asserts is a valid holographic will and, therefore, decedent's last will and testament. It is reproduced hereinafter:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Miss Grobman died on July 9, 1978, at the age of 90 years.

Thereafter, both wills were submitted for probate. The trial court ruled that the handwritten document could not be admitted to probate because appellant had not made a prima facie showing that it was decedent's holographic will. The court made the alternative finding that the writing was illegible and, thus, could not be proved as a last will and testament. After proof of the 1969 will, it was admitted to probate. Appellant contends that this was error. We agree and, therefore, reverse.

PRIMA FACIE PROOF OF A HOLOGRAPHIC WILL

A will which does not comply with the requirements for execution of wills set out in § 15-11-502, C.R.S.1973, may nevertheless be valid as a holographic will "whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator." Section 15-11-503, C.R.S.1973. A witness for appellant, a bank employee familiar with decedent's handwriting, testified that the entire document quoted above, including the signature, was written by the decedent. However, the appellee asserts that, in addition to making a prima facie showing that the requirements of § 15-11-503, C.R.S.1973, were met, the proponent was required to prove decedent's testamentary capacity at the time of execution of the will pursuant to § 15-11-501, C.R.S.1973. We disagree.

Burdens of proof and persuasion in formal probate proceedings are set out in "Proponents of a will have the burden of establishing prima facie proof of due execution in all cases .... Contestants of a will have the burden of establishing lack of testamentary intent or capacity .... Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof."

§ 15-12-407, C.R.S.1973, which states, in pertinent part:

Under this statute, once the proponent of a holographic will has offered prima facie proof that it was duly executed pursuant to § 15-11-503, C.R.S.1973, the contestant must bear the burden of introducing prima facie evidence that the person who executed the will lacked testamentary capacity. See Evans v. Liston, 116 Ariz. 218, 568 P.2d 1116 (1977). Enactment of § 15-12-407, C.R.S.1973, changes the long-established Colorado rule that the proponent of a will has the burden of proof and persuasion with regard to testamentary capacity. See Roeber v. Cordray, 70 Colo. 196, 199 P. 481 (1921); In Re Estate of Murphy, 29 Colo.App. 297, 483 P.2d 1364 (1971).

LEGIBILITY

As an alternative basis for rejecting the holographic will, the trial court concluded that it was illegible. In particular, the court could not discern the first two digits of the year and could not decipher a word it deemed critical to a finding of testamentary intent. Because there is no statutory requirement under § 15-11-503, C.R.S.1973, that a holographic will be dated and because there was no prima facie proof of lack of testamentary intent by contestant pursuant to...

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5 cases
  • Breeden v. Stone
    • United States
    • Colorado Supreme Court
    • 18 Enero 2000
    ... 992 P.2d 1167 In the Matter of the Estate of Spicer H. Breeden, Deceased: ... Holly Breeden Connell, and Vic E. BREEDEN, III, ... ...
  • Will of Smith, Matter of
    • United States
    • New Jersey Supreme Court
    • 29 Abril 1987
    ...on its face, burden on devisee to show testamentary intent); In re Estate of Nelson, 250 N.W.2d 286 (S.D.1977). But see In re Grobman, 635 P.2d 231 (Colo.Ct.App.1981) (interpreting statute modelled after section 3-407 as applying to holographic will, and placing burden on contestant to prov......
  • In re Estate of Hope
    • United States
    • Colorado Court of Appeals
    • 13 Diciembre 2007
    ...not persuaded. In construing a will, a court ascertains and gives effect to the testator's or testatrix's intent. In re Estate of Grobman, 635 P.2d 231, 233 (Colo.App.1981). In ascertaining that intent, we (1) give words and phrases their familiar, usual, and generally accepted meanings, In......
  • Estate of Olschansky, Matter of, 85CA0873
    • United States
    • Colorado Court of Appeals
    • 8 Enero 1987
    ...execution, while contestants bear the burden to establish lack of testamentary intent. Section 15-12-407, C.R.S.; see In re Estate of Grobman, 635 P.2d 231 (Colo.App.1981). We agree with the trial court that the evidence was sufficient to establish that decedent did not intend the letter to......
  • Request a trial to view additional results
3 books & journal articles
  • Mental Competence and Legal Capacity Under Colorado Law: a Question of Consistency
    • United States
    • Colorado Bar Association Colorado Lawyer No. 19-9, September 1990
    • Invalid date
    ...Banks v. Goodfellow, 5 L.R.-Q.B. 549 (1870). 11. In re Estate of Murphy, 483 P.2d 1364 (Colo.App. 1971). 12. Matter of Estate of Grobman, 635 P.2d 231 (Colo.App. 1981). This same rule applies to holographic wills. 13. Matter of Estate of Southwick, 515 P.2d 484 (Colo.App. 1973); Matter of E......
  • Legal Guidelines and Methods for Evaluating Capacity
    • United States
    • Colorado Bar Association Colorado Lawyer No. 32-6, June 2003
    • Invalid date
    ...also Hanks, supra, note 10. 13. Breeden, supra, note 8. 14. CRS § 15-11-504. 15. CRS § 15-11-503; see, e.g., Matter of Grobman's Estate, 635 P.2d 231 (Colo.App. 1981). 16. See CJI 4th 34:14. See also Gehm v. Brown, 245 P.2d 865 (Colo. 1952) (where beneficiary of a will at time of preparatio......
  • Holographic and Nonconforming Wills: Dispensing With Formalities-part I
    • United States
    • Colorado Bar Association Colorado Lawyer No. 31-12, December 2002
    • Invalid date
    ...§ 133.090; Okla. Stat.Ann. Tit. 84, § 54; P.R. Laws Ann. Tit. 31, § 2161; S.D. Codified Laws Ann. § 29-2-8. 15. Estate of Grobman, 635 P.2d 231 (Colo. App. 16. Id. Absent from the Court of Appeals' decision is the fact that the holographic document consisted of several sheets of paper, one ......

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