Monthly Archives: January 2014

January 21, 2014

Holographic wills and writings intended as wills: when is a letter really a will?

by Morgan Wiener

Readers of this blog who are also fans of Downton Abbey were no doubt excited by the variety of estate planning issues that surfaced in the first episode of season 4 – death duties, holographic wills, and witty remarks by the Dowager Countess, oh my!  They may have also wondered whether the late Matthew’s letter to Lady Mary declaring that he wished her to be his sole heiress would actually qualify as a holographic will.  While the lawyer’s assessment that the letter, which was signed by the decedent and two witnesses, demonstrated testamentary intent certainly seems correct, testamentary intent is only one factor in determining whether a document constitutes a will.

Section 15-11-502 of the Colorado Probate Code sets forth the requirements for a holographic will in Colorado.  This section provides that a will that does not otherwise comply with the requirements for a will (generally, the document must be in writing, signed by the testator, and signed by two witnesses or a notary) may be admitted to probate as a holographic will if the signature and material portions of the document are in the testator’s handwriting.  The portions of the holographic will that are not in the testator’s handwriting may be used as evidence of the testator’s intent that the document constitute his will.

But what if, as with Matthew’s letter to Lady Mary, the document in question is not fashioned as a last will and testament, can it still serve as a valid will?  Under Colorado law, it must clear a fairly high hurdle.  Section 15-11-503 sets forth when a document that does not comply with § 15-11-502 may be treated as a will.  This section provides that such a document is a will when it is established by clear and convincing evidence that the decedent intended the document to be either (1) a will, (2) a partial or complete revocation of a will, (3) an addition or alteration to a will, or (4) a partial or complete revival of a formerly revoked will or portion of a will.  Even if the foregoing is proved, the document will only be considered a will if (1) the document is signed or acknowledged by the decedent as his will, or (2) it is shown by clear and convincing evidence that the decedent mistakenly signed a document intended to be the will of his spouse.  The determination under § 15-11-503 is a question of law for the court and may not be decided by a jury.

The requirements for a whether a document constitutes a will can vary, sometimes significantly, from state to state, regardless of whether the state has adopted the Uniform Probate Code.  For example, unlike the Colorado Probate Code, the Utah Uniform Probate Code provides that a document may be considered a will so long as it is established by clear and convincing evidence that the decedent intended the document to be either (1) a will, (2) a partial or complete revocation of a will, (3) an addition or alteration to a will, or (4) a partial or complete revival of a formerly revoked will or portion of a will.  There is no additional requirement that (1) the document be signed or acknowledged by the decedent as his will, or (2) that it is shown by clear and convincing evidence that the decedent mistakenly signed a document intended to be the will of his spouse.  There is also no mandate that the question of whether the document was intended as a will be decided by the court as a matter of law.  See Utah Code Ann. § 75-2-503.  (Section 75-2-502 specifically addresses holographic wills.) 

The Wyoming Probate Code also has different requirements for a holographic will than either Colorado or Utah.  Section 2-6-113 provides that a will may be a holographic will, whether or not witnessed, if it is entirely in the testator’s handwriting and signed by the testator.  The Wyoming Probate Code also limits the class of persons who may properly witness a will to, with certain limited exceptions, those who are not beneficiaries under the will.  See § 2-6-112.  Neither Colorado nor Utah have any such limitation.

So what to make of the late Matthew Crawley’s letter?  Is it a valid will?  Given that the letter was neither styled as a will nor signed and acknowledged as a will, it seems that it would have the best chance of being accepted as a will in Utah.  Under the Utah Uniform Probate Code, if it was proven by clear and convincing evidence that Matthew intended the letter to be a will (and, really, what else could he have meant by the statement that he wanted Mary to be his sole heiress?), then it would be considered a will regardless of the fact that he did not sign or acknowledge the letter as his last will and testament.  In Colorado or Wyoming, however, this statement of testamentary intent might not be enough, and baby George would stand to inherit quite the fortune.

January 6, 2014

Utah v. Colorado

by Rebecca Klock Schroer

While maintaining a trust and estate litigation practice in both Colorado and Utah, I have noticed some significant differences between the two states, three of which I discuss below.

First, Utah has the Uniform Trust Code (“UTC”) and although Colorado has adopted some of the UTC provisions piecemeal, Colorado still does not have many of them.  Utah enacted the UTC effective in 2004, so it has been around for almost a decade.  In the work that we do in Utah, the UTC provides guidance and great utility in accomplishing goals for our clients.  The provisions we use the most often are the sections regarding trust modification and termination, change in trustee, fiduciary duties (e.g. loyalty, impartiality, etc.), and non-judicial settlement agreements.  In addition, because Utah has the UTC, its courts are more likely to recognize and adopt the provisions of the Restatement (Third) of Trusts, while Colorado is still primarily a Restatement Second state. 

Second, Colorado has a set of procedural rules that specifically apply to proceedings in probate court, Utah does not.  The Colorado Rules of Probate Procedure address the unique nature of probate court matters, including uncontested and expedited matters.  For example, C.R.P.P. 8.8 allows uncontested matters to be set on the court’s non-appearance docket and saves the parties and counsel a trip to the court house.  This is a significant efficiency that is unique to Colorado.

Third, Colorado has a Dead Man’s Statute and Utah no longer has one.  The Dead Man’s Statute is an important consideration in probate litigation. The policy behind the Dead Man’s Statute is to limit the testimony of an interested party regarding communications with a deceased person, because the deceased person is no longer available to rebut such statements.  Colorado’s Dead Man’s Statute is Colo. Rev. Stat. § 13-90-102 and was most recently revised effective August 7, 2013.  Colorado’s statute generally prohibits testimony about communications with a deceased person except in four limited circumstances as follows:

(a) The statement was made under oath at a time when such person was competent to testify;

(b) The testimony concerning the oral statement is corroborated by material evidence of a trustworthy nature;

(c) The opposing party introduces uncorroborated evidence of related communications through a party or person in interest with a party; or

(d) Such party or person testifies against his or her own interests.

In Utah, Rule of Evidence 601 supersedes the Utah Dead Man’s Statute (formerly Utah Code Ann. § 78-24-2 (1953)).  Rule 601 includes two paragraphs that address litigation involving deceased persons, as follows:

(b) In an action for the declarant's wrongful death, a statement of the declarant is admissible against the plaintiff notwithstanding the hearsay rule.

(c) In an action against the declarant's estate, the declarant's statement is admissible notwithstanding the hearsay rule if it was made at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear unless it was made under circumstances indicating its lack of trustworthiness.

When preparing for trial, these evidentiary rules provide different considerations depending on the state in which the action is pending.

As I continue to practice in Utah and Colorado, I am sure I will discover more differences between the two states.  While practicing in two states is a challenge, it provides very interesting work and a better understanding of the trends in this area of the law.