Contesting a will in Colorado: testamentary capacity and undue influence

When a person makes out a will, he or she sometimes does it in a way that does not comply with the requirements set down by Colorado law. If a person that has an interest in the testator's (the person who made the will) estate suspects that the law was not followed, he or she may bring a will contest action-a lawsuit that challenges the validity of the will.

Although there are several bases on which a will contest may be brought, two primary ones are lack of testamentary capacity and undue influence. In both of these grounds, the testator's state of mind when the will was made is at issue. Although this often is a potential issue if the testator is elderly, this is not always the case.

Testamentary capacity

In cases of testamentary capacity, the issue is whether the testator was of sound mind when he or she executed the will. Whether a person has the required testamentary capacity is a more complex question than whether he or she was mentally ill, was under a guardianship or has been found mentally incompetent. Although the presence of any of these factors may raise the question of whether the testator had testamentary capacity, the required level of understanding required in order to be considered to be of sufficient sound mind to make a will is fairly basic under the law.

Specifically, under Colorado law, a court will consider several factors when determining whether the testator was of sound mind when the will was made. These factors include whether the testator understood:

· That he or she was making out a will and the effect of doing so

· The general nature and amount of property he or she owns (i.e. the testator does not need to know the value of his estate "to the penny")

· How the will distributes the property and whether it agrees with his or her intentions

If a court finds that the testator had a general understanding of these factors, the will is deemed valid and enforceable.

However, a will may also be deemed invalid if the testator suffered from an insane delusion when he or she executed the will. However, this is only the case if the delusion significantly affects the execution or the writing of the will.

Undue influence

A will may be deemed invalid if it is the product of undue influence. In Colorado, this occurs when another person's actions take away the free will of the testator, such as in cases of coercion or duress. As a result of this person's actions, the testator includes provisions in the will that he or she would not otherwise have included. Also, undue influence may be presumed if a beneficiary of the will was in a confidential or fiduciary relationship with the testator and was actively involved with the will's preparation or execution.

Since contesting a will is a particularly complex area of the law, it is important to seek the counsel of an experienced estate planning attorney. An attorney can advise you further on your rights under the law and work to achieve the best possible outcome.