Sadly, someone close to you has died. Perhaps they had a formal attorney-drafted will everyone was aware of. Perhaps they didn’t. Regardless, in going through the loved one’s things you find a document where the decedent appears to say what he wanted done with all, or part, of his estate. But it doesn’t look like a will. Maybe it’s hand-written by the decedent on a napkin. Or maybe it’s typed up on a word processor and signed by the decedent, but without witnesses. Maybe it’s a few sentences in a letter to someone signed by the decedent. Can these things be wills? Oddly, the answer in many cases is yes.
Traditionally and throughout much of western legal history, in order for a court to admit a document to probate, the will document was required to adhere to very strict formal requirements, often including a signature witnessed by two non-interested parties and formal will language. If a document did not meet these formal requirements, it was not considered an enforceable will by the courts.
However, that is no longer the case. Colorado has adopted a more modern view of wills in light of a public policy that the courts should try to honor the wishes of the deceased whether or not the deceased obeyed formal execution requirements.
In Colorado, a holographic (meaning hand-written) will is enforceable if the signature and material portions of the document are written in the testator’s own hand. This means that even a note, written in private, maybe even on a scrap of paper, can be a will if the testator wrote it in his own handwriting, intended it to dispose of his or her property should he or she die, and was signed.
While hand-written (holographic) wills have a long legal history of recognition, C.R.S. 15-11-503 expands greatly what is an enforceable will, dictating that many writings are enforceable if they were intended to be wills, whether or not they comply with formal execution requirements or are handwritten. Specifically, C.R.S. §15-11-503 (2015) reads in part:
Although a document, or writing added upon a document, was not executed in compliance with [formal execution requirements], the document or writing is treated as if it had been executed in compliance with [formal execution requirements] if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
- (a) The decedent’s will;
- (b) A partial or complete revocation of the will;
- (c) An addition to or an alteration of the will; or
- (d) A partial or complete revival of the decedent’s formerly revoked will or a formerly revoked portion of the will.
From a practical standpoint, this means that many documents that traditionally would not have been enforceable as wills are now potentially enforceable.
Still, while the law in Colorado now recognizes many more documents as potentially enforceable wills, many attorneys are not well-versed in the application of C.R.S. §15-11-503, and may jump to the conclusion that a writing the decedent meant as a will is not an enforceable document simply because it does not meet their expectation of traditional will formalities. Essentially—even attorneys often fall into the trap of thinking that, if it doesn’t look like a traditional formal will, it must not be a will and cannot be probated.
Unfortunately, this can mean that the wishes of the deceased are ignored, and that beneficiaries that should inherit from the estate are left empty-handed.
If you find any document that even remotely seems to express what the deceased wished done with his or her property, you should contact an attorney with experience in writings intended as wills immediately. Don’t delay, as there are many deadlines in these types of cases that, if missed, may prevent you from contesting a will, or probating a document intended as a will, keeping the deceased’s true wishes from ever been enforced.
For a free analysis of your situation, call Patterson Weaver Law, LLC today.
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