CO Code § 15-12-407 (2021)
2021 Colorado Code|Title 15 - Probate, Trusts, and Fiduciaries|Article 12 - Probate of Wills and Administration|Part 4 - Formal Testacy and Appointment Proceedings|§ 15-12-407. Formal Testacy Proceedings - Burdens in Contested Cases

 In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and, if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.   History. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-407. History. Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-407.    ANNOTATION   Law reviews. For article, “In Re: The Mourners”, see 6 Dicta 7 (1929). For article, “Powers and Perpetuities in Colorado”, see 10 Rocky Mt. L. Rev. 249 (1938). For article, “How Many Times”, see 19 Dicta 231 (1942). For article, “Mental Competence and Legal Capacity Under Colorado Law: A Question of Consistency”, see 19 Colo. Law. 1813 (1990). For article, “Anatomy of an Undue Influence Case”, see 42 Colo. Law. 55 (April 2013). For article, “Conservator-Created Wills: Issues in Litigation”, see 44 Colo. Law. 53 (Aug. 2015).   Annotator's note. Since § 15-12-407 is similar to repealed § 153-5-27, C.R.S. 1963, § 152-5-34, CRS 53, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section. Annotator's note. Since § 15-12-407 is similar to repealed § 153-5-27, C.R.S. 1963, § 152-5-34, CRS 53, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   The burden rests upon the proponents to establish the mental capacity of the person executing the will. This is a substantive question of fact, not a technical one of procedure. As a question of fact, it is for the trier of fact to make determination, based upon the presented evidence, as to whether the testatrix had the testamentary capacity to make a will. In re Estate of Murphy v. Warner, 29 Colo. App. 297, 483 P.2d 1364 (1971) (decided under section prior to 1973 repeal and reenactment).   Section changed burden of proof of testamentary capacity. Enactment of this section changed the long-established Colorado rule that the proponent of a will has the burden of proof and persuasion with regard to testamentary capacity. Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).   Contestant has burden to prove lack of capacity. Once the proponent of a holographic will has offered prima facie proof that it was duly executed, the contestant must bear the burden of introducing prima facie evidence that the person who executed the will lacked testamentary capacity. Nunez v. Jersin, 635 P.2d 231 (Colo. App. 1981).   In order to establish that testator was not possessed of sufficient mental capacity to execute a valid will, evidence offered by contestants must be calculated to establish mental incapacity at the time of the execution of the will. In re Estate of Gardner, 31 Colo. App. 361, 505 P.2d 50 (1972).   Proof required is of facts from which mental incapacity may be inferred. The law recognizes the difficulty if not the impossibility of establishing mental incapacity by direct or positive evidence such as is required to establish a tangible physical fact, and that the only positive and affirmative proof to be expected or required is of facts and circumstances from which mental incapacity may reasonably be inferred. In re Estate of Sebben, 151 Colo. 12 , 375 P.2d 516 (1962).   Under this section courts do not knowingly admit fraudulent wills to probate. Bigler v. Bigler, 82 Colo. 463 , 260 P. 1081 (1927).   Where a will is presented for probate and an objection is filed, the burden of sustaining its allegations is upon objectors. Estate of Eder, 94 Colo. 173 , 29 P.2d 631 (1934).   Burden of going forward with proof is on proponent of will. In re Estate of Sebben, 151 Colo. 12 , 375 P.2d 516 (1962).   The burden of proof to show undue influence is upon the one who asserts it. Snodgrass v. Smith, 42 Colo. 60 , 94 P. 312 (1908).   Rebuttable presumptions of undue influence and fairness do not continue in a case after they are sufficiently rebutted. However, though the presumed facts may not be established as a matter of law at that point, the jury may nevertheless infer the presumed facts from the evidence that gave rise to the presumptions. Krueger v. Ary, 205 P.3d 1150 (Colo. 2009).   The acts of friendship and kindness performed by one neighbor to another are not to be stigmatized as undue influence. In re Carey's Estate, 56 Colo. 77 , 136 P. 1175 (1913).   The opportunity to exert undue influence creates no presumption against the will. In re Shell's Estate, 28 Colo. 167 , 63 P. 413 (1900); Snodgrass v. Smith, 42 Colo. 60 , 94 P. 312 (1908).   Trial court did not err by holding the caregiver rebutted the presumption of undue influence, to the extent that the principles of Taylor v. Taylor, 79 Colo. 487 , 247 P. 174 (1926), and Lamborn v. Kirkpatrick, 97 Colo. 421 , 50 P.2d 542 (1935), still have vitality. In re Estate of Schlagel, 89 P.3d 419 (Colo. App. 2003).   The fact that the scrivener of a will is executor and legatee therein, at most raises a suspicion, strong or weak, or, in some cases, of no force at all, depending upon the attending circumstances, which, in a proper case, should cause the court to require of proponent, in addition to proof of formal execution, other clear and satisfactory evidence, not necessarily that the will was real or by the testator, but that he knew its contents and was free from undue influence. Snodgrass v. Smith, 42 Colo. 60 , 94 P. 312 (1908).   Refusal of court to release will so that it could be destroyed has no effect on testator's right to execute subsequent will. Retention by the court does not mean that the will ultimately will be probated, nor does it indicate any judgment by the court regarding testator's capacity to execute a valid will. Jenkins v. Mesa County Dist. Court, 620 P.2d 721 (Colo. 1980).   This section does not address the issue of burden of proof in the case of a lost or missing will. Thus, the rebuttable presumption that arises in such cases under common law, that the decedent destroyed the will with intent to revoke it, applies. In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).