In re Estate of Sky Dancer, 99CA0537.

Decision Date12 October 2000
Docket NumberNo. 99CA0537.,99CA0537.
Citation13 P.3d 1231
PartiesIn the Matter of the ESTATE OF SKY DANCER, Deceased. Laura J. Fisher, Appellee, v. Lawrence Barnes, Appellant.
CourtColorado Court of Appeals

W. Sean Scott, Lakewood, Colorado, for Appellee.

Jack Kintzele, Denver, Colorado, for Appellant.

Opinion by Judge ROY.

In this probate proceeding, Lawrence Barnes (the legatee) appeals the trial court's order finding that Sky Dancer (the decedent) died intestate, and appointing the decedent's mother, Laura J. Fisher (the heir), as personal representative of the decedent's estate. We affirm.

The decedent died in December 1997 of gunshot wounds. The circumstances of her death prompted an investigation during which the investigating officers allegedly took into possession the original copy of a document which purported to be her last will and testament (the "Will").

Thereafter, an attorney retained to represent the estate commenced summary administration pursuant to § 15-12-1201, et seq., C.R.S.2000, which provides simplified procedures for the administration of small estates. At that time, the interested parties agreed that the decedent's testamentary intent was expressed in the "Will" which was considered to be a photocopy of the original document retained by the police. Based upon that agreement, partial distribution of the decedent's personal property was made in accordance with the terms of the "Will." However, after becoming aware of certain information developed by the police investigation suggesting that the legatee might have been involved in the decedent's death, the heir objected to any further distributions under the "Will," and none was made.

In October 1998, the heir filed a petition for adjudication of intestacy, determination of heirs, and formal appointment as personal representative of the decedent's estate. The legatee, who was living with the decedent at the time of her death and was a beneficiary under the "Will," filed an objection to the petition.

The "Will" consisted of the following photocopied documents: (1) four typewritten pages entitled "Last Will and Testament of Sky Dancer," dated September 10, 1997, to which were stapled two additional typewritten pages entitled "AFFIDAVIT," which takes the form of a notarized will attestation signed by the decedent and two witnesses and dated April 8, 1996; (2) a typewritten "Special Power of Attorney," dated April 8, 1996, and signed by the decedent and attested to by a notary public; (3) a signed typewritten statement dated August 11, 1997, in which the decedent stated that she had intentionally omitted her siblings; (4) an unsigned, typewritten document entitled "Estate Planning Worksheet" dated September 10, 1997; and (5) an unsigned, typewritten document entitled "Declaration Regarding Final Arrangements of Sky Dancer" dated September 10, 1997. In addition, the first document, which purported to be the testamentary instrument, contained incomplete portions, the end of the testamentary text was followed by a large segment of blank page, and the signatures and attestation clauses were on a page separate from any testamentary text.

The legatee argued in the trial court that the decedent died testate, conceding, however, that the "Will" was not executed pursuant to statute. The legatee maintained that the documents making up the "Will" constituted a holographic will and, in any event, when considered with certain supporting documents, were sufficient to make a determination of intestacy improper. The legatee further argued that he and the decedent had contracted a common law marriage and he was, therefore, an heir.

Following an evidentiary hearing, the trial court found or concluded that the legatee had failed to prove: (1) that he and the decedent had contracted a common law marriage; (2) that the "Will" was a holographic will; or (3) that the decedent intended the "Will" to be her last will and testament. The trial court concluded that the decedent had died intestate and appointed the heir as personal representative of the estate.

I.

At the outset, we address the legatee's first contention that the trial court erred in failing to make sufficient findings of fact, and erred in not admitting the "Will" into evidence. We disagree with the first and conclude that the "Will" was, in fact, admitted into evidence.

The trial court's order must contain findings of fact and conclusions of law sufficient to give an appellate court a clear understanding of the basis of its decision. See In re Marriage of Van Inwegen, 757 P.2d 1118 (Colo.App.1988). Based on our review of the order we conclude that the trial court's order complies with this standard.

The legatee contends that the trial court, in not admitting the "Will" into evidence, failed properly to apply CRE 1003 and CRE 1004, which concern the admissibility of duplicates and other evidence of the contents of writings, recording, and photographs.

On the contrary, the record reflects that the trial court admitted the "Will" into evidence even though there was no testimony that the original documents were unavailable. The weight to be given such evidence, however, is a matter to be determined by the trial court. See Jarnagin v. Busby, Inc., 867 P.2d 63 (Colo.App.1993).

II.

Relying upon § 15-11-503, C.R.S.2000, the legatee contends that the trial court erred in finding that the decedent died intestate. We disagree.

Traditionally, Colorado has recognized only wills that are signed and witnessed in accordance with the statute. While the statute has required more formality in the past, it currently requires that the instrument be: (1) in writing; (2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and (3) signed by at least two witnesses before whom the testator either signed, acknowledged the signature, or acknowledged the will. Section 15-11-502(1), C.R.S.2000. More recently, Colorado has recognized holographic wills if they are signed by the testator and material portions of the document are in the handwriting of the testator. Section 15-11-502(2), C.R.S.2000.

In 1994, the General Assembly adopted comprehensive changes to the Colorado Probate Code which brought that code into conformity with the Uniform Probate Code Article II. See Colo.Sess.Laws 1994, ch. 178, § 15-10-107, et seq.; 8 Uniform L.Annot. 79-492 (1998). As pertinent here, the adopted revisions included a new provision, effective July 1, 1995, that is now § 15-11-503, C.R.S.2000. This provision states:

Although a will was not
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4 cases
  • In re Schumacher
    • United States
    • Colorado Court of Appeals
    • April 14, 2011
    ...in the formal requirements of will execution established by section 15–11–502. Wiltfong, 148 P.3d at 468; see In re Estate of Sky Dancer, 13 P.3d 1231, 1234 (Colo.App.2000). Here, petitioner is not challenging the probate of the entire holographic will, but rather only whether the cross-out......
  • In re Estate of Wiltfong, No. 05CA1189.
    • United States
    • Colorado Court of Appeals
    • October 19, 2006
    ...the Code was amended in 1994 to align Colorado's law with extensive changes suggested by the Uniform Probate Code. In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App.2000). One of these changes was effected by § 15-11-503(1), C.R.S.2006. This statute governs how potential donative documents......
  • In re Marriage of Phelps and Robinson, 02CA0354.
    • United States
    • Colorado Court of Appeals
    • May 22, 2003
    ...Liab. Ins. Co. v. Indus. Comm'n, 145 Colo. 91, 357 P.2d 929 (1960)(entitlement to workers' compensation benefits); In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App.2000)(determination of heirship); Whitenhill v. Kaiser Permanente, supra (right to bring wrongful death action). We hold that......
  • Liberty Mut. Fire Ins. Co. v. HUMAN RESOUR. COMPANIES INC.
    • United States
    • Colorado Court of Appeals
    • June 17, 2004
    ...we can only speculate as to its reason. Under these circumstances, we cannot review the trial court's decision. See In re Estate of Sky Dancer, 13 P.3d 1231 (Colo.App.2000)(the trial court's order must contain findings of fact and conclusions of law sufficient to give an appellate court a c......
13 books & journal articles
  • PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book 2021 Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...see 42 Colo. Law. 45 (Jan. 2013). The statute does not apply to unexecuted instruments purporting to be wills. In re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000). A decedent need not both sign and acknowledge a document as his or her will for it to be admitted into probate. The lang......
  • WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book 2022 Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...see 42 Colo. Law. 45 (Jan. 2013). The statute does not apply to unexecuted instruments purporting to be wills. In re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000). A decedent need not both sign and acknowledge a document as his or her will for it to be admitted into probate. The lang......
  • PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book (CBA) Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...see 42 Colo. Law. 45 (Jan. 2013). The statute does not apply to unexecuted instruments purporting to be wills. In re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000). A decedent need not both sign and acknowledge a document as his or her will for it to be admitted into probate. The lang......
  • Chapter 14 - § 14.3 • WHEN COMMON LAW MARRIAGE BECOMES AN ISSUE
    • United States
    • Colorado Bar Association Elder Law in Colorado (CBA) Chapter 14 Common Law Marriage
    • Invalid date
    ...that common law marriage is recognized in Colorado). See also In re Marriage of Phelps, 74 P.3d at 509.[3] In re Estate of Sky Dancer, 13 P.3d 1231 (Colo. App. 2000) (determination of heirship). In 2013, the legislature expanded the standing of a personal representative in a probate matter ......
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