by Rebecca Klock Schroer
We are seeing an increase in the number of lawsuits in which people are challenging or trying to circumvent estate plans. The claims traditionally include lack of testamentary capacity and those involving improper actions by family members, agents under powers of attorney or conservators.
A challenge to an estate plan often involves a claim that the testator was not of sound mind. Under Colorado law, a sound mind includes the presence of the Cunningham factors and absence of an insane delusion that materially affected the testamentary instrument. The Cunningham factors are as follows: the testator must (1) understand the nature of the act, (2) know the extent of his property, (3) understand the proposed testamentary disposition, (4) know the natural objects of his bounty, and (5) that the testamentary instrument represented his wishes. Cunningham v. Stender, 255 P.2d 977 (Colo. 1953).
In addition to these factors, the testator cannot be suffering from an insane delusion. An insane delusion exists if a person has a persistent belief, resulting from illness or disorder, in the existence or non-existence of something contrary to all evidence, which materially affects the disposition in the testamentary instrument. Breeden v. Stone, 992 P.2d 1167 (Colo. 2000). For example, failure to include a child in the will because the testator believes that child has been abducted by aliens and will never return to earth. Read more