In re Estate of Wiltfong, No. 05CA1189.

Decision Date19 October 2006
Docket NumberNo. 05CA1189.
Citation148 P.3d 465
PartiesIn the Matter of the ESTATE OF Ronald WILTFONG, Deceased. Randall Rex, domestic partner of Deceased, beneficiary of propounded will, and proponent of document asserted to be a will pursuant to C.R.S. § 15-11-503, Claimant-Appellant, v. Margaret L. Tovrea, Respondent-Appellee.
CourtColorado Court of Appeals

Bradley Devitt & Arp, P.C., Jerald J. Devitt, J. Michael Shea, Golden, Colorado, for Claimant-Appellant.

Zak, Fox, & Pehr, P.C., James J. Zak, Westminster, Colorado, for Respondent-Appellee.

Opinion by Judge BERNARD.

In this formal testacy probate proceeding, Randall Rex (proponent), the proponent of a document alleged to be a will, appeals the trial court's order finding decedent, Ronald Wiltfong, died intestate. We reverse and remand for further proceedings.

I. Background

The following facts are undisputed. Proponent and decedent were domestic partners for twenty years until decedent's death. They lived together and intermingled most of their finances.

On proponent's birthday in 2003, proponent and decedent celebrated with two friends. In the presence of the friends, decedent gave proponent a birthday card containing a typed letter decedent had signed. The letter expressed decedent's wish that if anything should ever happen to him, everything he owned should go to proponent. The letter also stated that proponent, their pets, and an aunt were his only family, and "everyone else is dead to me." Decedent told proponent and the friends the letter represented his wishes.

Decedent died from a heart attack the following year.

Proponent filed a petition to have the letter admitted to probate as decedent's will. Margaret Tovrea (contestant), the mother of decedent's three nephews who would be decedent's heirs if he died intestate, objected to the petition.

The trial court ruled the letter was not a will because it did not meet the requirements of § 15-11-503(2), C.R.S.2006, and therefore the nephews would take decedent's estate by intestate succession. This appeal followed.

Proponent contends the trial court erred in concluding decedent did not intend the letter to be his will. We conclude that further proceedings are necessary to resolve this question.

II. General Principles

We apply the following general principles regarding testacy proceedings, execution of wills, holographic wills, standard of review, and burden of proof.

A. Formal Testacy Proceedings

Formal testacy proceedings to determine whether a decedent left a valid will are governed by statute. Section 15-12-401, et seq., C.R.S.2006. In contested cases, proponents of a will have the burden of presenting prima facie evidence to show the will was duly executed. Once such evidence is presented, those contesting a will's validity have the burden of proving by a preponderance of the evidence lack of testamentary capacity, undue influence, fraud, or the like. Section 15-12-407, C.R.S.2006; In re Estate of Romero, 126 P.3d 228 (Colo.App.2005).

B. Execution of Wills

The underlying purposes of the Colorado Probate Code (Code) are to simplify and clarify the law concerning the affairs of decedents; to discover and make effective the intent of decedents in distributing their property; and to promote a speedy and efficient system for settling estates of decedents and distributing their property to their successors. The Code is to be liberally construed and applied to promote these purposes. Section 15-10-102, C.R.S.2006.

As relevant here, § 15-11-502(1), C.R.S.2006, establishes three requirements for a will: (1) it must be in writing; (2) it must bear the testator's signature or be signed in the testator's name; and (3) it must also bear the signatures of at least two persons who witnessed either the testator's signature or the testator's acknowledgment of the signature. There is no need to publish the document as the testator's will or to have witnesses sign the document in the presence of the testator or the other witnesses. In re Estate of Royal, 826 P.2d, 1236 (Colo.1992).

Although these three formalities represent a reduction over time in the number of formalities surrounding the execution of wills, compare § 15-3-502, C.R.S.1963, with § 15-11-502(1), they "require strict adherence in order to prevent fraud because statutes governing execution are designed to safeguard and protect the decedent's estate." In re Estate of Royal, supra, 826 P.2d at 1238 (citation omitted).

C. Holographic Wills

Section 15-11-502(2), C.R.S.2006, provides that handwritten wills may also be valid: "A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting."

Proof of a decedent's intent that a document serve as a holographic will can be established by extrinsic evidence, including parts of the document that are not in the decedent's handwriting. Section 15-11-502(3), C.R.S.2006. Holographic wills are viewed as valid even if "immaterial parts such as date or introductory wording are printed, typed, or stamped" or if printed will forms are used and the "material portions of the document are handwritten." Uniform Probate Code § 2-502 cmt. subsec. (b).

Here, the trial court found the letter was not a holographic will. Neither party disputes this finding on appeal.

D. Harmless Error

While scrupulous adherence to the formalities associated with executing wills serves the important purpose of preventing fraud, it can also "defeat intention . . . [or] work unjust enrichment." Restatement (Third) of Property: Wills & Other Donative Transfers § 3.3 cmt. b (1999). To address this concern, among others, 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 are treated when they have not been executed pursuant to the three requirements established by § 15-11-502(1). Sections 15-11-503(1) states:

Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:

(a) The decedent's will . . . .

The purpose of adding § 15-11-503(1) was to provide a mechanism for the application of harmless error analysis when a probate court considers whether the formal requirements of executing a will have been met. Applying a harmless error standard in these circumstances supports the purposes of the Code and follows the general trend of the Uniform Probate Code extending the principle of harmless error to probate transfers. In re Estate of Sky Dancer, supra. See generally D. Johns, Probating Flawed Wills: Colorado's New CRS § 15-11-503, 25 Colo. Law. 85 (Nov.1996).

Thus, the question is whether a defect is harmless in light of the statutory purposes, not in light of the satisfaction of each statutory formality, viewed in isolation. To achieve those purposes, the issue is whether the evidence of the conduct proves the decedent intended the document to be a will. Restatement, supra, § 3.3 cmt. b.

Certain errors cannot be excused as harmless, like the failure of a proponent to produce a document. Other errors are difficult, although not impossible, to excuse as harmless, like the absence of a signature on a document. Restatement, supra, § 3.3 cmt. b. In this regard, § 15-11-503(2) reads: "Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will . . . ."

Adopted in 2001, Colo. Sess. Laws 2001, ch. 249 at 887, § 15-11-503(2) was designed to limit the harmless error concept to minor flaws in the execution of wills. In re Estate of Sky Dancer, supra; H. Tucker, D. Swank & T. Hill, Holographic and Nonconforming Wills: Dispensing with Formalities — Part II, 32 Colo. Law. 53 (Jan.2003). Thus, § 15-11-503(2) establishes the condition precedent that a document be "signed or acknowledged by the decedent as his or her will" before a court may move to the next step and decide whether there is clear and convincing evidence the decedent intended the document to be a will.

The kinds of errors viewed as harmless in Colorado are technical drafting mistakes that frustrate the testator's intent. In re Estate of Sky Dancer, supra.

E. Burden of Proof Under § 15-11-503

Under § 15-11-503, a proponent of a document must show, by clear and convincing evidence, the decedent intended the document to be a will. This enhanced burden is "appropriate to the seriousness of the issue." Uniform Probate Code § 2-503 cmt. Clear and convincing evidence is stronger than a mere preponderance; it is highly probable evidence free from serious or substantial doubt. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo.App.1995).

The greater the deviation from the requirements of due execution established by § 15-11-502, the heavier the burden on the document's proponent to prove, by clear and convincing evidence, that the instrument establishes the decedent's intent. In re Estate of Sky Dancer, supra.

III. "Signed or Acknowledged by the Decedent as His or Her Will"

Proponent contends the trial court erred in interpreting § 15-11-503(2) to require a document to be both signed and acknowledged by a decedent as his or her will. We agree.

Statutory interpretation is a question of law we review de novo. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027 (Colo.2006). When interpreting a statute, our task is to give effect to the legislature's intent. Colo. Office of Consumer Counsel v. Pub. Utils. Comm'n, 42 P.3d 23 (Colo.2002). W...

To continue reading

Request your trial
10 cases
  • Meyer v. Fanning (In re Estate of Meyer)
    • United States
    • Wyoming Supreme Court
    • January 20, 2016
    ... ... Wyo. Stat. Ann. 26203; see also In re Estate of Wiltfong, 148 P.3d 465, 46667 (Colo.App.2006); Prima Facie Case for Proponent in Will Contest as Shifting Burden of Proof, 76 A.L.R. 373 (1932); Wood v ... ...
  • People ex rel. Vivekanathan
    • United States
    • Colorado Court of Appeals
    • October 24, 2013
    ... ... See In re Estate of Wiltfong, 148 P.3d 465, 468 (Colo.App.2006) (Clear and convincing evidence is stronger than a ... ...
  • People v. Vivekanathan
    • United States
    • Colorado Court of Appeals
    • October 24, 2013
    ... ... See In re Estate of Wiltfong, 148 P.3d 465, 468 (Colo. App. 2006) ("Clear and convincing evidence is stronger than ... ...
  • Caraveo v. Perez (In re Estate of Bethurem)
    • United States
    • Nevada Supreme Court
    • November 27, 2013
    ... ... (internal quotation marks omitted)); In re Estate of Garrett, 81 Ark. App. 212, 100 S.W.3d 72, 75 (2003); In re Estate of Wiltfong, 148 P.3d 465, 467 (Colo.App.2006); In re Estate of West, 522 A.2d 1256, 1264 (Del.1987); Howe v. Palmer, 80 Mass.App.Ct. 736, 956 N.E.2d 249, 254 ... ...
  • Request a trial to view additional results
14 books & journal articles
  • Reflecting on the Language of Death
    • United States
    • Seattle University School of Law Seattle University Law Review No. 34-02, December 2010
    • Invalid date
    ...App. 2006) (citing revocable trust containing forfeiture clause and specific exclusion of adopted children); In re Estate of Wilt-fong, 148 P.3d 465, 466 (Colo. App. 2006) (discussing letter submitted to probate as will); In re Ingersoll Trust, 950 A.2d 672, 678 (D.C. 2008) (referring to ha......
  • 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
    ...not conjunctive. There is no restriction in the statute requiring the decedent to state, "This is my will". In re Estate of Wiltfong, 148 P.3d 465 (Colo. App. 2006). Signature not required by a cross-out to effectuate a partial revocation. When a holographic will was properly executed, no a......
  • 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
    ...not conjunctive. There is no restriction in the statute requiring the decedent to state, "This is my will". In re Estate of Wiltfong, 148 P.3d 465 (Colo. App. 2006). Signature not required by a cross-out to effectuate a partial revocation. When a holographic will was properly executed, no a......
  • 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
    ...not conjunctive. There is no restriction in the statute requiring the decedent to state, "This is my will". In re Estate of Wiltfong, 148 P.3d 465 (Colo. App. 2006). Signature not required by a cross-out to effectuate a partial revocation. When a holographic will was properly executed, no a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT