1 Opinions of the Colorado Supreme Court are available to the 2 public and can be accessed through the Judicial Branch’s homepage at 3 http://www.courts.state.co.us

. Opinions are also posted on the 4 Colorado Bar Association’s homepage at http://www.cobar.org

. 5 6 ADVANCE SHEET HEADNOTE 7 April 9, 2018 8 9 201 8 CO 26 10 11 No. 16SC 386 , Sandstead
- Corona v. Sandstead
— Implied Trusts
— Probate 12 Jurisdiction
— § 15
- 10
- 501, C.R.S. (2017)
— No
- Contest Clause
. 13 14 This case raises multiple issues arising from a dispute between two sisters 15 concerning their mother’s estate and funds contained in a multi

- party account alleged to 16
be non

- probate assets . The supreme court concludes first that pursuant to section 17
13

- 9

- 103(3)(b), C.R.S. (2017), the trial court had jurisdiction to resolve the dispute over the 18
funds in the multi

- party account and to impose a construct ive trust if appropriate because 19 the facts present ed a qu estion as to whether the funds we re part of mother’s estate. The 20

court further conclude s that the trial court properly imposed a constructive trust over 21
these funds because the sister who was the surviving signatory on the multi

- party 22 account was in a confidential relationship with her mother and her sister and she abused 23 that relationship when she misspent t he funds. Next, t he court concludes that because 24 an implied trust is included in the fiduciary oversight statute’s de finition of an “estate,” 25 the trial court properly surcharged the sister who was the signatory on the multi

- party 26
account because she had misused the funds in the implied trust. Finally, the court 27 concludes that although a no - contest clause that was contai ned in mother’s revocable 28trust was in corporated by reference into her will, by its plain language , that clause 1 applied only to actions contesting the trust, not challenges to the will. Accordingly, the 2

court conclude s that the trial court erred in enforc ing the no

- contes t clause against the 3
sister who challenged the will. 4
The supreme court thus reverses the judgment of the court of appeals and remands 5 this case for further proceedings

. 6The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colorado 8020 3

2018 CO 26 Supreme Court Case No. 16SC386 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA231

Petitioner : Shauna Sandstead

- Corona ,

v. Respondent : Vicki J. Sandstead

. Judgment Reversed en banc April 9, 2018 Attorneys for Petitioner David F. Steinhoff R. Eric Solem Englewood, Colorado Attorneys for Respondent: The Law Offices of Peter R. Bornstein Peter R. Bornstein Greenwood Village, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.2

¶1 This case involves a dispute between two sisters, Shauna Sandstead

- Corona (“Corona”) and Vi c ki Jo Sandstead (“Sandstead”), over how to divide their mothe r Auriel Sandstead’s (“Auriel ’s ”) estate. Prio r to her death, Auriel placed proceeds from the sale of the family ’s farm into a m ulti

- party bank account (the “Wells Fargo Account”) on which Sandstead and Corona were also signatories , with the intent that the money would
transfer to Sandstead and Corona outside of probate upon Auriel’s death. With Auriel’s permission, Sandstead later moved a large portion of the funds into different bank

accounts (the “Citizens Bank Accounts”) that Corona could not access

. Auriel subsequently died, and the court appoin ted Sandstead as the personal representative of Auriel’s probate estate

. Corona then filed a motion to surcharge Sandstead for , as pertinent here, her use of the funds that Sandstead had removed from the Wells Fargo Account and placed in the Citizens Bank Accounts

. ¶2 The Logan County District C ourt, acting in its capacity as probate court in this proceeding , conducted a trial on Corona’s surcharge motion and determined th at Sandstead’s custody of the funds prior to filing a probate proceeding was “ in the nature of an implied trust. ” The court further concluded that Sandstead had failed to account properly for the funds, thus warranting a surcharge for the unaccounted amou nts

. ¶3 In the course of the above

- described probate proceeding, a pour - over will and
related revoca ble trust executed by Auriel and her late husband were discovered

. Corona
contested the will and trust on the ground that Auriel and her husband had revoked t he

trust. The trial court rejected this contention, however, and further concluded that under3

the trust’s no

- contest clause, because Corona had contested the will and trust , she
forfeited all property that she would have inherited under the will.
¶4 Both S andstead and Corona appealed , and in a published decision, a split division of the court of appeals concluded that the trial court had erred in surcharging Sandstead for her use of the farm proceeds . The division majority reasoned that the funds at issue were not part of the probate estate . R ather , they passed to Sandstead alone under the probate code’s multi

- party account statute

. Therefore, the surcharge was inappropriate. The division also affirmed the trial court’s determination regarding the no

- co ntest clause.
¶5 Corona petitioned for certiorari, and we grant ed the petition to consider (1) whether an implied trust could b e imposed on the farm proceeds that Sandstead had placed in the Citizens Bank Accounts ; (2) whether the fiduciary oversight statute in the probate code permitted the trial court to sanction Sandstead for actions taken prior to Auriel’s death and prior to Sandstead’s appointment as personal representative of
Au riel’s estate; (3) whether the trial court erred in applying the no

- contest c laus e in the

trust to Corona’s challenge to the pour

- over will; and (4) whether Corona had probable
cause to contest the will. 1

1 Specifically, w e granted certiorari to review the following issues:
1. Whether the court of appeals erred in reversing the district court’s finding that an implied trust had been created.
2. Once the district cour t obtained jurisdiction over a personal r epresentative, whether the fiduciary oversight statute at section 15

- 10

- 501 , C.R.S. (2016), permits the district court to sanction the p ersonal r epresentative for wrongful conduct in administering a4

¶6 We now reverse the division’s ruling. As a preliminary matter, we concl ude that pursuant to section 13

- 9

- 103(3)(b), C.R.S. (2017), the trial court had jurisdiction to resolve
the present dispute because the dispute presented a question as to whether the funds that
Sandstead had placed in the Citizens Bank Accounts were part of Auriel’s probate estate. Turning then to the issu es presented, we conclude first that the trial court properly imposed an implied trust over at least a portion of the farm proceeds . Specifically, when
Sandstead moved the funds from the Wells Fargo Account to the Citizens Bank Accounts , she was in a conf idential relation ship with her mother and Corona. When she then misspent those funds , she abused that confidential relationship, thereby justifying the imposition of an implied trust.
¶7 We further conclude that because an implied trust is included in the fi duciary oversight statute’s definition of an “estate , ” the trial court could properly surcharge
Sandstead for her malfeasance as to the funds in the implied trust.
¶8 Finally, we conclude that although the no

- contest clause in the trust was incorporated by reference into th e will, by its plain language, that clause applies only to actions contesting the trust, not challenges to the will . Accordingly, we conclude that the

decedent’s financial affairs prior to the decedent’s death a nd prior to her appointment as personal r epresentative.
3. Whethe r the court of appeals erred in affirming the district court ’s extension of a no

- contest clause from a trust into an accompanying pour - over will.
4. Whether d ecedent’s attempt to revoke her revocable trust constituted probable cause for a beneficiary to chal lenge not just the trust but also its companion pour

- over will.5

trial court erred in enforcing the no

- contest clause against Corona based on her ac tions contesting the will.
¶9 We therefore reverse the division’s judgment, and we need not reach the final issue on which we granted certiorari.


### I. Facts and Procedural History ¶10 The pertinent facts of this case are lengthy and complex. We begin by tracing the facts leading to the present probate proceeding. W e then provide the facts necessary to understand the dispute over Sandstead’s handling of the funds in the Citizens Bank
A ccounts. Next , we review the facts related to the dispute over the no

- contest clause. Finally, we discuss the parties’ appeals of the trial court’s pertinent orders.



### A. Events Leading to this Probate Proceeding
¶11 Auriel and her husband Willard had three daughters, Corona, Sandstead, and Margo Mesch. Mesch is not involved in this case.
¶12 In 1991, Auriel executed a will (the “1991 Will”) , naming Willard as her heir and
Sandstead and Corona a s the residuary beneficiaries.
¶13 In 2000, Auriel executed a second wil l (the “2000 Will”) and, along with Willard, a related revocable living trust (the “Trust”)

. Willard and Auriel placed thre e parcels of property into that T rust: (1) their h ouse in Sterling, Colorado; (2) their condominium in Florida; and (3) a parcel of land from the family farm. Under the terms of the T rust, upon the death of both Willard and Auriel, the assets of the T rust were to be divided 40% to Sandstead, 40% to Corona, and 2 0% (10% each) to Mesch ’s two sons
. The 2000 W ill also
named the Trust as the residuary bene ficiary of Auriel’s estate.6

¶14 In 2000, Willard began arranging to sell the family ’s farm, and the sale was completed shortly after he died in 2007

. At the suggestion of Willard and Auriel’s attorney , the proceeds from the sale were deposit ed into the Wells Fargo Account, which

was a multi

- party account with Willard, Aurie l, Sandstead, an d Corona as joint signatories. The parties do not appear to dispute that Auriel placed the funds into the Wells Fargo Account to avoid having those funds pass through probate on her death.
¶15 Thereafter , and while Auriel was still alive, Sandstead moved approximately $200,000 from the Wells Fargo A ccount to the Citizens Bank Accounts, which were
located in Boston , where Sandstead lives

. Cor ona was not a signatory on any of the
Citizens Bank A ccounts. Rather, only Sandstead, and in some cases Auriel, was a signator y on those accounts. According to Sandstead , Auriel agreed to allow Sandstead

to move the money to the Citizens Bank Accounts , a nd Sandstead understood that the money was to be used for Auriel’s care until her death, after which it would be split equal ly between herself and Corona. Corona likewise under stood that she was to be
entitled to one

- half of the money in the Citizens Bank A ccount s after Auriel’s death.
¶16 Auriel died in late 2007. Thereafter, Sandstead and Corona met with their parents’ lawyer to sign a small estate affidavit , representing that the value of the estate was less than $50,000. At the time the sisters signed this affidavit, they believed that because the farm proceeds had been transferred to the joint bank accounts, Auriel’s estate consisted solely of a car and certain personal property

.7

¶17 Sandstead and Corona subsequently began to disagree about matters relatin g to their parents’ assets. Corona also began to ask Sandstead for her half of the money that
had been held in the Citizens Bank A ccounts.
¶18 About a year later, Sandstead initiated the present probate proceeding because she
believed that items were missi ng from Auriel’s estate. Sandstead lodged the 1991 W ill
with the trial court (apparently because she was unaware at that time of the 2000 Will) , and the registrar signed an order appointing her as the personal repr esentative of Auriel’s

estate. Thereafter , Sandstead opened an estate account at Citizens Bank and transferred
the funds in the Citizens Bank A ccounts that were in her name into the estate account.


### B. Corona’s Surcharge Motion
¶19 About a year after Sandstead opened the probate estate, Corona fil ed a petition to remove Sandstead as personal r epresentative , alleging that Sandstead had
mis administer ed Auriel’s estate in a number of ways

. Rather than litigate this petition, Sandstead resigned as pe rsonal representative , and she and Corona agreed to the appointment of a successor personal representative

. ¶20 Subsequently, the successor personal representative filed , and the trial court granted, a mot ion requiring Sandstead to provide a detailed accounting. After Sandstead
filed the requested accounting , Corona filed a motion for surcharge and o ther relie f against Sandstead.
¶21 The trial court held a bench trial on Corona’s surcharge motion and ultimately
issued an order finding that Sandstead had improperly accounted for and unnecessarily spent funds (1) bef ore Auriel’s death, (2) after Auriel’s death but before Sandstead’s8

appointment as p ersonal representative, and (3) after Sandstead’s appointment. T he trial

court thus conclud ed that Sandstead held the farm proceeds in an implied trust. In addition, t he trial court co ncluded that because Sandstead had treated the funds in the
Citizens Bank A ccounts as estate property , she had made a judicial admission that s he
did not claim those funds individually. Finally, the court found that it did not have
sufficien t information to de cide whether to surcharge Sand stead for certain transactions

. The court thus ordered the successor personal representative to conduct an accounting
as to those transactions.
¶22 Sandstead moved for reconsideration of the court’s order and f or a ne w trial. As pertinent here, she asserted that the trial court (1) could not surcharge her for actions predating her appointment as personal representative , (2) did not have jurisdiction over
the funds in the Citizens Bank A ccounts until Sandstead transferred the remaining funds
to the estate , and (3) i ncorrectly determined that Sandstead’s placement of the funds in an estate account constituted a judicial admission

. The trial court denied this motion

. ¶23 Corona then filed a motion for final surcharge, which the trial court granted in
substantial part. 

### C. Corona’s Challenge to the 2000 Will and Trust
¶24 Some time after the above

- described surcharge hearing, the 2000 Will and the
Trust were discovered. Thereafter , Sandstead filed a petition for formal probate of the
2000 Will and a motion to determine the validity of the Trust

. Corona , however, challenged the validity of th e two instruments because of a written Trust revocation sign ed by both Willard and Auriel. She argued that the Trust revocation effectively9

revoked Willard and Auriel’s entire 2000 estate plan, including the 2000 Will.
¶25 The trial court held a hearing on the validity of the 2000 Will and the Trust and ultimately found that Willard and Auriel did not validly revoke the Trust . In support of this ruling, the court reasoned that at the time of the revocation , Willard and Auriel were suffering from impaired functioning and had not received sufficient in formation from their attorney to provide them wit h an adequate understanding of the nature and effect
of their acts. The court further found that the 2000 Will was valid because Willard and
Auriel did not revoke it in one of the two perm itted ways under section 15

- 11

- 507 , C.R.S. (2017)

. ¶26 Subsequently, Sandstead and her two nephe ws , Robert and Karry Mesch, filed a
motion to enforce a no - contest c lause contained in the Trust

. This clause provided that if any beneficiary of the T rust contested or disputed the validity of the T rust or any of its provisions , then the Trust settlors (Willard and Auriel) would revoke absolutely the gift or provision for that person and declare any such gift o r provision void. The Trust was incorporated by reference, in its entirety , into the 2000 Will.
¶27 Sandstead and her nephe ws argued that because Corona had cont ested the validity of the T rust, she could no longer benefit from it

. Corona responded, however,
that the no - contest clause was un enforceable because she had probable cause to challenge
bo th the 2000 Will and the T rus t.
¶28 The trial court ultimately ruled that Corona had p robable cause to chall enge the
Trust but not the 2000 W ill and , therefore , Corona was barred from receiving gifts or provisions from the estate or any testamentary trust.10 

### D. Cross
- Appeal s
¶29 Sandstead appealed the trial court ’s surcharge orders , arguing, as pertinent here,
that the court had erred in surcharging her for her use of the farm proceeds. She asserted that (1) she had no fiduciary relationship with either her mother or her sister that c ould have given rise to an implied trust and (2) the proceeds from the farm passed outside of
p robate pursuant to the multi

- party account statute, §§ 15

- 15

- 201 to

- 227 , C.R.S. (2017),
and therefore were not part of the proba te estate. Sandstead also argued that the trial

court had e rred in finding that her placement of the farm proceeds in an estate bank account constituted a judicial admission that the funds were part of the estate

. ¶30 Corona responded that the trial court had properly determined that an implied trust was created over the farm proceeds when Sandstead mov ed those proceeds to the
Citizens Bank A ccount s
. She further asserted that the trial court had the authority to surcharge Sandstead for he r actions because Sandstead had submitted to the jurisdiction
of the trial court when she filed the probate proceeding and thus could not question that
court’s jurisdiction , which she herself had invoked

. ¶31 In addition, Corona cross - appealed the trial court ’s decision enforcing the

no - contest clause. She contended that (1) the clause did not apply to the 2000 Will and (2) even if it did apply, Corona had probable c ause to contest the 2000 Will.
¶32 Sandstead responded to the cross

- appeal , arguing that the trial c ourt had properly
concluded that the no - contest clause applied to the 2000 Will because the 2000 Will incorporated the clause by reference and the facts before the trial court did not support Corona’s assertion that she had probable cause to contest the 2000 Will.11

¶33 In a split, published decision , a division of the court of appeals concluded that the
trial court had erred in surcharging Sandstead for action s taken concerning the fund s in
the Citizens Bank A ccounts. In re Estate of Sandstead , 2016 COA 49, ¶ 54 , 412 P.3d 799,
808

– 09

. As pertinent here, the majority determined that by operation of law, the money in the Citizens Bank Accounts belonged to Sandstead alone and that the estate had no claim to that money. Id. at ¶¶ 36 , 54 , 412 P.3d at 806 , 808

– 09

. In reaching this conclusion,
the majority further determined that Sa ndstead’s placement of the funds in an estate account did not constitute a judicial admission. Id. at ¶ 42 , 412 P.3d at 806

– 07

. And the majority concluded that the trial court ’s enforcement of the no - contest clause against Corona was proper , agreeing that the clause was incorporated into the 2000 Will and that Corona did not have probable cause to contest the 2000 Will. Id. at ¶¶ 68− 69 , 76 , 412 P.3d

at 811

– 12

. ¶34 Judge Taubman concurred as to the no - contest clause but disagreed with the majority’s conclusion that the trial court had improperly surcharged Sandstead for
actio ns taken regarding the Citizens Bank A c count s
. Id. at ¶ 125 , 412 P.3d at 819 (Taubman, J., concurring in part and dissenting in part) . In Judge Taubman’s view, the
trial court had properly concluded that (1) Sandstead did not “own” the money in the Citizens Bank Accounts but rather was an agent with respect to those funds and (2) the
Citizens Bank A ccounts were agency or trust accounts that were not subject to the
multi

- party account statute. Id. at ¶ 1 23 , 412 P.3d at 819 . Judge Taubman also concluded
that Sandstead’s actions and statements that the funds in the Citizens Bank estate account12

wer e estate property constituted judicial admission s , even if Auriel had not intended that the funds in those accounts be part of her estate. Id. at ¶ 115 , 412 P.3d at 818

. ¶35 Corona petitioned t his court for certiorari review , and we granted that petition.


### II. Analysis ¶36 We begin by addr essing the applicable standard of review. We then turn to the trial court’s jurisdicti on to impose an implied trust , given Sandstead’s assertion s that the assets at issue were not part of the probate estate and that therefore , the court lacked jurisdiction over the dispute regarding those assets

. After concluding that the trial court had jurisdiction, we proceed to discuss the la w of implied trusts and determine that the trial court properly found that such a trust could be i mposed in the circumstances presented

. We then examine the trial court’s authority to surcharge Sandstead for the
actions that s he took prior to her appointment as personal representative and conclude
that the court had such authority here

. Finally, applying established principles of contractual interpretation, we construe the no

- contest clause and conclude that that
clause did no t apply to Corona’s challenge to the 2000 Will.


### A. Standard of Review ¶37 “When a court enters a judgment following a bench trial, that judgment presents
a mi xed question of law and fact.” State Farm Mut

. Auto

. Ins. Co. v. Johnson , 2017 CO 68, ¶ 12 , 396 P.3d 651, 654

. “We apply a bifurcated standard to such questions, reviewing the evidentiary factual findings for an abuse of discretion and the legal conclusions de
novo.” Id. ; see also E

- 470 Pub. Highway Auth

. v. 455 Co. , 3 P.3d 18, 22− 23 (Colo. 2000) (noti ng that w hen the issue before an appellate court presents a mixed question of law13

and fact, the court may treat the ultimate conclusion as one of fact and apply a clear error
standard , it may concl ude that a mixed question of fact and law demands de novo review,
or it may review the findings of fact for clear error and the legal conclusions de novo, but ultimately deciding to apply an abuse of discretion standard to review the trial court’s evidentiary findings of fact in support o f its application of a legal principle from other jurisdictions )

. ¶38 In addition, this case requires us to interpret the pertinent statutes, as w ell as the
T rust and the 2000 Will

. We review such issues de novo. UMB Bank, N.A. v. Landmark
Towers Ass’n , 2017 CO 107 , ¶ 22 , 408 P.3d 836, 840 ( noting that the supreme court reviews
issues of statutory interpretation de novo); Denver Found

. v. Wells Fargo Bank, N.A. , 163 P.3d 1116, 1122 ( Colo. 2007) (“ [ A ] bsent ambiguity, interpretation of a trust is a question of law that we review de novo.”)

. ¶39 In construing a statute, “we look to the entire statutory scheme in order to give consistent, harmonious, and sensible effect to all of its parts , and we apply words and phrases in accordance with their plain and ordinary meanings. ” UMB Bank , ¶ 22 , 408 P.3d at 840

. If the statutory language is clear, we apply it as written and need not resort to other rules of statutory construction. I d. Our ultimate goal is to effect uate the legislature’s intent. See St. Vrain Valley Sch. Dist. RE

- 1J v. Loveland , 201 7 CO 54, ¶ 1 1 , 395 P.3d 751, 754.


### B
. Jurisdiction to Impose Implied Trust ¶40 Before addressing whether the trial court ’s conclusion that the farm proceeds in
the Citizens Bank A ccounts were subject to an implied trust, we must first address the14

trial court ’s jurisdiction to decide that question , given Sandstead’s contention that the
assets at issue are non

- estate assets and therefore were not subject to the court’s jurisdiction

. ¶41 A district court sit t ing in probate “ has jurisdiction over all subject matter v ested by article VI of the [ Colorado ] constitution and by articles 1 to 10 of title 13, C.R.S

. ” § 15

- 10

- 302 (1) , C.R.S. (2017). The court thus has the authority

t o impose or raise a trust with resp ect to any of the property of the decedent or any property in the name of the decedent, individually or in any other capacity, in any case in which the demand for such relief arises in connection with the administration of the estate of a decedent. § 13

- 9

- 103(3)(b), C. R.S. (2017); see also In re Estate of Lemb a ch , 622 P.2d 606, 607 (Colo. App. 1980) (“Since all probate courts may exercise subject matter jurisdiction vested by
articles 1 through 10 of title 13, the specific enumeration of the Denver Probate Court’s subject matter jurisdiction is applicable to all district courts sitting in probate matters.”).
¶42 The phrase “in connection with” is commonly understood to contemplate a logical and contextual relationship or association exhibitin g “coherence” or “continuity.” See People v. Baer , 973 P.2d 1225, 1230 (Colo. 1999). A pplying this definition in the context of a probate court’s jurisdiction, a division of t he court of appeals interpreted the phrase
“in connection with” to authorize th e court to resolve disputes logically relating to the

estate , even when the disputes involve non

- probate assets

. See In re Estate of Owens , 2017 COA 53, ¶ ¶ 13 −17 ,

___ P.3d

_ __ ( concluding t hat the district court sitting in probate
had jurisdiction to impose a constru ctive trust on funds in payable

- on - death bank

accounts because resolving the issues surrounding those assets was essential to the15

proper and orderly administration of the decedent’s estate). D ivisions of the court of appeal s have thus consistently determined that questions over whether property is part
of an estate vests a probate court with jurisdiction to impose a constructive trust over such pr operty pursua nt to section 13

- 9

- 103

. See i d. at ¶¶ 16− 17; see also In re Estate of Murphy , 195 P.3d 1147, 115 1

– 52 (Colo. App. 2008) (concluding that the probate court had jurisdiction over a party’s petition to partition certain real property , notwithstanding the
fact that the parties disputed whether the property at issue was p roperty of the est ate , because resolving the questions of title presented by the petition was essential to the proper, orderly distribution of estate property ).
¶43 Here, the farm proceeds at issue at least initially belonged to Auriel , and the present disput e over the funds is logically related to Auriel’s estate

. See Owens , ¶ ¶ 13 −17

. Moreover, as the record reflects, this case raised questions as to whether the
funds at issue came into Auriel’s estate thro ugh the 2000 Will and the Trust or whether they remained outside the probate estate because they passed by operation of law to Sandstead via th e multi

- party account statute or to Sandstead and Corona via a n implied

trust

. Because the resolution of these issues was essential to the proper and orderly
ad ministration of Auriel’s estate , we conclude that the trial court , sitting in probate, had jurisdiction to decide these questions and, if necessary, to impose a n implied trust on the
assets at issue

. See id. ; Murphy , 195 P.3d at 1151

– 52. We thus turn to whether the imposition of a n implied trust was warranted on the f act s presented

.16 

### C
. Implied Trust
¶44 Colorado recognizes two kinds of implied trusts: resulting and constructive trusts

. Page v. Clark , 592 P.2d 792, 797− 98 ( Colo. 1979). Resulting trusts have loosely be en classified as “intent

- enforcing. ” S ee Shepler v. Whalen , 119 P.3d 1084, 1089 (Colo. 2005).
These generally arise in three situations: (1) when an express trust fails in whole or in part; (2) when an express trust is fully performed without exhau sting the trust estate; and (3) when property is purchased and the purch ase price is paid by one person and , at that person’s direction , the vendor conveys t he property to another person. Page , 592 P.2d at
797. In each of these situations, the facts give rise to an inference that the person taking title to the property is not intende d to have the beneficial interest. Id.
¶45 In contrast, a constructive trust is a “remedial device designed to prevent unjust

en richment.” Mancuso v. United Bank of Pueblo , 818 P.2d 732, 737 (Colo. 1991).
Constructive trusts “are raised by equity in respect of property which has been acquired by fraud, or where, though acquired originally without fraud, it is against equity that it
should be retained by him who holds it.” Page , 592 P.2d at 798 (quoting Botkin v. Pyle , 14 P.2d 187, 191 (Colo. 1932))

. “The doctrine of constructive trusts is extremely flexible.”
Mancus o , 818 P.2d at 737.
¶46 This court has observed that a constructive trust can arise when two parties have a “confidential relationship” that caused on e pa rty to act less vigilantly than he or she
would have done had he or she been dealing with a stranger

. See Page , 592 P.2d at 798. In particular, we have recognized that confidential relationships often arise between close family members. See Lewis v. Lewis , 189 P.3d 1134, 1142

− 43 (Colo. 2008) ( “Claims17

arising between close family members or confid a nts, where one party reasonably relies
on the asserti ons of another in absence of a written document stems [sic] from a confidential relationship between the parties.”)

. We have also noted that a confidential relationship may arise when one party has justifiably reposed confidence in another, but
for such a relationship to arise from a transfer of proper ty , the transferor must be justified
in his or her belief that the transferee will act in the transferor’s interests. Page , 592 P.2d
at 798

. ¶47 Once a party demonstrates that a c onfidential relationship exist s , a transaction may be set aside if that relationship has been abused. Id. A party can demonstrate an abuse of the confidential relationship by showing , for example, that the party who
possesses the property at issue refuse d to act in accordance with the parties’ mutual
intent. See i d. (“The refusal to perform the promise to reconvey is itself a sufficient abuse of confidence to allow the conveyance to be set aside. ” ); Lewis , 189 P.3d at 1143 (“ [ W ] hen close family members or confidants act with a mutual purpose, unjust e nrichment occurs when one party benefits from an action that is a significant deviati on from that mutual purpose.”)

. In such circumstances, the imposition of a constructive trust may be proper because when property has been acquired in ci rcumstances in which the holder of legal title may not in good conscience retain the beneficial interest, equity converts the holder
into a trustee. Page , 592 P.2d at 798.
¶48 When grounds exist for the imposition of a constructive trust, t he trust is deemed
to exist as of the date of the wrongful acquisition, with the acquirer treate d as a trustee
from that date. See id. ; see also Mt. Sneffels Co. v. Estate of Scott , 789 P.2d 464, 467 (Colo.18

App. 1989) (“A constructive trust in the sale proceeds from the land that was mistakenly omitted from the buyer’s deed was created by operation of law at the moment of
conveyance to the third

- party bona fide purchaser.“ ); Caryl A. Yzenbaard, George Gleason Bogert & George Taylor Bogert, B ogert’s Trusts & Trustees § 472 (2017) ( “Most courts take the position that the constructive trust arises at the time the property is wrongfully acquired.” )

. ¶49 Notably, a t least one division of the co urt of appeals has applied the foregoing principles to impose a construc tive trust when , as here, a parent placed property in joint tenancy with one child with the understanding that the child would share the property
with his or her s iblings after the parent died

. See Weeks v. Esch , 568 P.2d 4 94, 495 (Colo. App. 1977)

. In Weeks , a mother, in an attempt to avoid probate, transferred ownership of all of her property, real and personal, to herself and her daughter, in joint tenancy. Id.
The mother later sold one property and despite the title interest of the daughter , divided the proceeds from that sale equally among herself and all of her children. Id. Thereafter, and just days before her mother’s death, the daughter, allegedly at the mother’s direction,
withdrew the funds on deposit in certain joint bank account s and deposited those funds
into her own account. Id. The daughter’s siblings subsequently challenged these actions,
and the trial court ultimately found that the mother had transferred her property to the daughter intending for the daughter to divide that property equally among all of the
children. Id. The trial court also found that a confidential relationship existed between the mother and daughter and, accordingly, ruled that the daughter held the property
under a constr uctive trust. Id. The daughter appealed, contending that the necessary19

elements of a constructive trust had not been established, but the division rejected this argument, concluding that the trial court had properly determined that a confidential
relatio nship existed between the mother and daughter , there by justifying the imposition
of a constructive trust. Id. at 49 5

− 96

. ¶50 Turning to the facts of this case, we note initially that the record reveals some confusion as to whether the farm proceeds at issue w ere assets of the probate estate. The trial court appears t o have concluded that they were, either because of Sandstead’s purported judicial admissions (by treating the funds as estate assets) or due to the operation of the 2000 Will and the Trust. The d ivision majority, however, disagreed with this conclusion, determining that the assets passed outside the estate, by operation of the
multi

- party account statute. Sandstead , ¶ 3 6 , 412 P.3d at 806

. Although for the reasons discussed below, the trial court will need to revisit this issue on remand, the resolution of this question does not preclude us from addressing the implied trust issue because we conclude that the funds at issue are subject to a constructive trust regardless of whether they are estate assets.
¶51 Specifically, assuming without deciding that the farm proceeds at issue are not part of the probate estate, we conclude that a confidential relationship existed between
Auriel and Corona , on the one hand , and Sandstead , on the other , when Sandstead moved the funds from the Wells Fargo account, where Corona was an accoun t holder, to
the Citizens Bank A ccount s, where she was not

. Sandstead agrees that the transferred
fund s belonged to Auriel u ntil her death and thereafter were to be equally owned by
Sandstead and Corona

. Moreover, the record amply supports the existence of a20

confidential relationship among the parties because they were close family members who reasonably relied on each other t o carry out their mutual intent even absent a written agreement. See Lewis , 189 P.3d at 1142− 43. And the record further supports the trial court’s finding that Sandstead abused this confidential relationship by misspending a portion of the funds in the Citizens Bank A ccounts , contrary to Auriel and Corona’s
interest in the funds

. Accordingly, assuming without deciding t hat the funds at issue

were non - probate assets, we conclude that the trial court properly imposed a n implied

trust on those fund s
. See Page , 592 P.2d at 798.
¶52 Even if the f arm proceeds at issue were probate assets, however, we would reach
the same conclusion

. In that scenario, whether or not Sandstead knew that she was holding the funds on behalf of Auriel’s estate, she indisputably knew that she was holding them f or someone other than herself , whether her mother, her mother’s estate, Corona, or any other heirs

. Accordingly, in our view, the analysis set forth above with respect to the funds as non

- probate assets applies here with equal force. Specifically, Sandstead was in a confidential relationship with the other parties who had an interest in the funds at issue, and she abused that relationship by misspending those funds, contrary to the other parties’ interests. Th us , for the reasons set forth above, we perceive no error in the trial court’s decision to impose a n implied trust on those funds. See
Man c us o , 818 P.2d at 737 ; Page , 592 P.2d at 798.
¶53 In this regard, we believe that Weeks is substantially on point. As no ted above, i n Weeks , a division of the court of appeals affirmed the imposition of a constructive trust in a factual scenario that was nearly identical to that at issue here, in which an intended21

heir had remov ed funds from a joint bank account when the fu nds were intended to be divided among all of the decedent’s intended heirs. Weeks , 568 P.2d at 496. We agree with that division’s analysis and conclude that it supports the result that we reach here.
¶54 We are not persuaded otherwise by the division majority’s conclusion that because
the funds were in a multi

- part y account, they passed to Sandstead alone pursuant to
section 15

- 15

- 212(1) and therefore, a n implied trust was un warranted

. Sandstead , ¶ 36 , 412 P.3d at 805. The multi

- party account statute provides, in pertinent part, “[O] n death of a party [to a multi

- p arty account] sums on deposit in a multiple

- party account belong to the surviving party or parties.” § 15

- 15

- 212 (1)

. Th e multi

- party account statute does not apply , however, to “a fiduciary or trust account in which the relationship is
established other than by the terms of the account .” § 15

- 15

- 202 (emphasis added)

. Here , for the reasons set forth above, the funds in the Citizens Bank A ccount s comprised a fiduciary or trust account, namely, a constructive trust by which Sandstead held the funds at issue in trust for Corona. Moreover, the relationship created by this trust account was not created by the terms of the multi

- party account itself . Rather, the trust account

was established in equity. Accordingly, by its express terms , the multi

- party account statute does not apply. See id.



### D
. Trial Court ’s Ability to Surcharge
¶55 We next address Sandstead’s contention that sections 15

- 10

- 501 to

- 505 , C.R.S. (2017) (the “fiduciary oversight statute”) , did not authorize the trial court to surcharge
her for actions that she took prior to becoming the personal represen tative of her mother’s

estate. We disagree.22

¶56 The fiduciary oversight statute grants district courts si tting in probate the authority to oversee the actions of fiduciaries over whom the court s ha ve obtained jurisdiction. § 15

- 10

- 501 (1). For purposes of this statute, “j urisdiction ” is defined as “the personal jurisdiction obtained by a court over a fiducia ry as a result of the filing of a proceeding con cerning the estate.” § 15

- 10

- 501 (2)(c)

. Although the term “fiduciary” as
used in this sta tute is not defined, section 15

- 10

- 501(3) of the probate code cites a trustee as an example of a fiduciary. The term “estate,” in turn, is defined to include both estates of a decedent and implied trusts. § 15

- 10

- 501 (2) (b).
¶57 In addition, section 15

- 1 0

- 504 (2)(a) of the probate code authorizes a district court sitting in probate to review a fiduciary’s conduct and to surc harg e and sanction the fiduciary upon a breach of fiduciary duty or an improper exercise of his or her power
. Specifically, if a court determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, then t he court may surcharge the
fiduciar y for any damage or loss to the estate, benefic iaries, or interested persons. Id.
¶58 Applying these principles here, we conclude first that t he trial court obtained jurisdiction over Sandste ad as a result of her filing thi s probate proceeding and obtaining an order appointing her as personal representative of the estate

. See § 15

- 10

- 501(1). In addition, as noted above, the trial court had the authority to impose a n implied trust on the funds contained in the Citizens Bank A ccount s, and because the funds in the Citizens
Bank A ccount s comprised such a trust, tho se funds fall within section 15

- 10

- 501(2)(b)’s
definition of an “estate. ” Finally, because Sandstead was a constructive trustee of the implied trust at issue, she qu alifies as a “fiduciary” pursuant to section 15

- 10

- 501(3 ) and23

thus was properly subject to surcharge under the fiduciary oversight statute. See § 15

- 1 0

- 504 (2)

. 

### E
. No
- Contest Clause ¶59 Having decided that the trial court had the authority to surcharge Sandst ead for her actions regarding the funds in the Citizens Bank Accounts, we must consider whether the division erred in affirming the trial court ’s application of the no

- contest clause to the
2000 Will , which resulted in the forfeiture of Corona’s share of Auriel’s estate. Corona
arg ues that although the Trust’s no - contest clause was inco rporated into the 2000 W ill, the plain language of that clause only prohibits a challenge to the Trust

. We agree.
¶60 “A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.” § 15

- 11

- 510, C.R.S. (2017). In construing a will, a court ascertains and gives effect to the tes tato r’s intent as expressed in the will

. Christopher v. Cole , 196 P.2d 988, 989 (Colo. 1948). In ascertaining th is intent, “words and phrases used therein must be given their familiar, usual an d generally accepted meaning.” In re
Gabriel’s Estate , 227 P.2d 344, 345 ( Colo. 1951). Additionally, no

- contest clauses in wills “are to be strictly construed, and forfeiture is to be avoided if possible.” In re Estate of Peppler , 971 P.2d 694, 696 (Colo. App. 1998).
¶61 Here, the parties agree that the following clause in the 2000 Will incorporates the Trust by reference into the 2000 Will : I give my resi duary estate

. . . to the trustee of THE WILLARD AND AURIEL SANDSTEAD REVOCABLE T RUST, dated July 25, 2000 , . . . to be added to the property of the Trust and disposed o f in accordance with its24

terms and any amendments prior to my death. If th e Trust, which I specifically and completely incorporate in this will by reference , is not in effect at my death, I direct my personal representative to establish a t rust in accorda nce with the provision s of the Trust and I give my residuary estate

. . . to the t rustee of such t rust. (Emphasis added.)
¶62 The question thus becomes whether the Trust’s no - contest clause, incorporated into the 2000 Will, precludes a challenge to the will.
¶63 The no

- contest clause provided : If any beneficiary of this T rust, other than a Settlor, directly or indirectly shall contest or dispute the validity of this T rust , or any of its provisions, or any amendments thereto, including the dispositio ns made or prov ided herein, .

. . or maintains before any judicial body that this is not a valid T rust , or seeks to cancel or avoid any of the provisions of this T rust , then the Settlors revoke absolutely the gift or provision for that person herein contained and declare any such gift or provision void. (E mphase s added

. )
¶64 Strictly construing this provision to avoid forfeiture if possible, id. , we conclude that the plain terms of the provision bar only a challenge to the Trust and not to the 2000
W il l. The no

- contest clause nowhere mention s the 2000 W i ll , and we see nothing in the
2000 W ill’s incorporation clause to alter the language of the no

- contest clause so as to render it applicable to the 2000 W ill.
¶65 Accordingly , we conclude that the division erred in affirming t he trial court ’s application of the no

- contest clause to the 2000 W ill and in therefore concludin g that
Corona’s challenge to the 2000 W ill resulted in the forfeiture of her share of Auriel’s

estate.25

¶66 In light of this disposition, we need not consider wheth er probable cause supported Corona’s challenge to the 2000 Will.


### III. Issues on Remand ¶67 For the foregoing reasons, we conclude that the divisio n erred in determining that (1) the trial court had erroneously imposed a n implied trus t on the funds at issue an d (2) Corona had forfeited her interest in Auriel’s estate by challenging the 2000 Will in
violation of the no

- contest clause. Accordingly, we reverse the division’s judgment and
remand this case for further proceedings.
¶68 Because the question is likely to arise on remand, we briefly address Sandstead’s contention that the trial court erred in concluding that the assets at issue were estate assets based on purported judicial admissions by Sandstead. We agree with Sandstead and the
division majority below th at Sandstead’s statements and actions did not constitute judicial admission s that the funds were p art of Auriel’s probate estate.
¶69 “A judicial admission is a formal, deliberate declaration which a party or his attorney makes in a judicial proceeding for the purpose of dispensing with proof of
formal matters or of facts about wh ich there is no real dispute.” Kempter v. Hurd , 713 P.2d 127 4, 1279 (Colo. 1986). The judicial admission doctrine “only applies to
pro - forma factual matters

— it does not pertai n to co ntested issues of law.” People v . McKimmy , 2014 CO 76, ¶ 17, 338 P.3d 333, 338. Here , the question of whether the farm proceeds passed into Auriel’s probate estate through the 2000 Will or the Trust is a question of law and therefore cannot be the subjec t of a judicial admission. See Me ier v. Denver U.S. Nat ’l Bank , 431 P.2d 1019, 1021 (Colo. 1967) (“The construction of a written26

in strument [is] a question of law

. . . . ”); Denver Found. 163 P.3d at 1122 (“[A]bsent ambiguity, interpretation of a trust is a question of law that we review de novo.”).
¶70 In light of this determination, on remand, the trial court will need to revisit whether all or a portion of the proceeds from the farm passed through either the 2000
Will or the Trust, or whether any of such proceeds passed to Sandstead and Corona outside of the probate estate. The determination of this question is important because if the assets pass under the 2000 Will or the Trust, then they would be divided 40% to Sandstead, 40% to Corona, and 20% to Mesch’s children. If, however, these assets pass outside of the probate estate, then they would be divided equally between Corona and Sandstead. We express no opinion on these matters.


### IV
. Co nclusion
¶71 For these reasons, we conclude that (1) the trial court properly imposed a n implied

trust on the funds in the Citizens Bank A ccount s ; (2) the trial court acted within its authority when it surcharged Sandstead for her improper administration of the funds in
the implied trust ; and (3) the no - contest clause in the T rust did not prevent Corona from contesting the 2000 W ill.
¶72 Accordingly, we reverse the division’s judgment and remand this case to that
court with instructions th at the case be returned to the trial court for further proceedings consistent with this opinion.