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

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.

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“Sound Mind”, “Lucid Intervals” and “Insane Delusions” – What Does It All Mean?

Author and director William “Tim” Burton is quoted as saying, “They say that one person’s insanity is another person’s reality.” Recently, Wade Ash has been involved in several interesting cases involving testators suffering from cognitive impairment when they prepared their Will or Trust. Even persons who are declared mentally incompetent, incapacitated or suffering from various types of mental illness or addiction, may still have sufficient capacity to prepare a Will or Trust. A testator may even lack testamentary capacity, but still have “lucid intervals” enabling them to prepare a Will.

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Will Contests

The proponents of the Will have the initial burden of due execution, venue, and proof of death. The burden is on the contestant to show lack of testamentary capacity, fraud, undue influence, duress, mistake or revocation. However, undue influence cannot be inferred by motive and opportunity alone. There must be some evidence, either direct or circumstantial, to show that undue influence not only existed but also influenced the making of the Will.

I have always considered the two most important witnesses in a Will contest to be the drafting attorney and treating doctor.

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