Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Probable Cause to Challenge Wills

In the November 2019 Wade Ash Newsletter, Herbert E. Tucker submitted an article regarding the pros and cons of pre-death will contests. In that article, he pointed out only a handful of states will entertain a pre-death will contest. A majority of states, however, will not entertain a motion for determination of the validity of a will during the testator’s lifetime because a will is deemed ambulatory and, therefore, only takes effect upon the testator’s death. Simply stated, most Courts will not render advisory opinions where there is no actual controversy before the Court.

Many wills and trusts contain no-contest clauses which result in forfeiture of the contestant’s inheritance if he or she challenges a will or trust without probable cause. Colorado Courts have defined probable cause, in the context of attacks on wills and trusts, “as the existence at the time of the initiation of the proceeding, of evidence which would lead a reasonable person, properly informed and advised, to conclude that there is a substantial likelihood that the contest or attack will be successful.”

Recently in the highly publicized Pat Bowlen litigation, the Arapahoe County District Court sided with the trustees in denying contestants Wallace and Klemmer’s request for a determination whether they had probable cause to challenge Pat Bowlen’s trust without risking their inheritance. Wallace and Klemmer sought an order from the Court that they had probable cause to avoid triggering the no-contest clause resulting in their disinheritance. Because the Arapahoe County District Court would not render an advisory opinion, the contestants now must roll the dice. If they are unsuccessful proving that their father lacked capacity to create his trust, they could forfeit hundreds of millions of dollars.

J. Michael Farley
Love is Blind - Wear Your Glasses

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