Category Archives: Will & Trust Construction

January 20, 2015

Avoidable Litigation as a Threat to the Assets of An Estate

by Carol Warnick

It wasn’t that long ago when the real threat to the financial well-being of a person’s estate was death taxes.  People were concerned about losing close to 50% of their estate to taxes without proper planning.  But with the increased exemption amounts, death taxes are not a big issue in most cases.  But something else is taking its toll on the hope of a smooth and simple passing of assets at death, and that is litigation. 

Much of the current estate litigation relates to family disputes, some of which might have been avoided through better estate planning.  But a certain amount of these family disputes would have occurred anyway simply because the families were upset enough to litigate over anything once mom and dad have passed away.  There is a different type of litigation beginning to crop up, however, that may create just as many problems for an estate as family in-fighting, and one which can be totally prevented.  I am speaking of litigation over wills and trusts drafted with forms obtained over the internet.

Unfortunately, with the increased exemption amounts (currently $5.43 million per person) and since many people no longer need tax planning they are more apt to decide they can do their estate planning documents themselves and not involve an attorney.  While self-drafted wills are not new and have been creating estate administration problems for years, I believe that the current ease of finding forms on the internet, making a few changes, and printing them at home will likely make this a more significant problem in the future. 

Cases are starting to crop up regarding mistakes made by consumers using internet forms.  One Florida case is a good example.  The case is Aldrich v. Basile, 136 So. 3rd, 530 (Fla. 2014).  In this case, Ms. Aldrich used a form and listed all the assets she owned at the time (her home and its contents, an IRA, a car and some bank accounts) and stated they should go to her sister.  If her sister didn’t survive her, she listed her brother as the one to receive everything. 

As luck would have it, her sister predeceased her and left her some additional assets which weren’t listed in Ms. Aldrich’s will because she didn’t own them when she drafted her will.   Either because the internet form didn’t contain one or because Ms. Aldrich took it out when she printed the will because she thought all her assets were covered, there was no residuary clause in the will.  As a result, after a trial court decision, an appellate court reversal, and ultimately an appeal to the Florida Supreme Court, it was decided that the listed assets would go per the will but the after-acquired assets inherited from her sister would pass through intestacy, bringing in two nieces who were the daughters of Ms. Aldrich’s deceased brother to share in the estate.

Although the living brother offered a note left by Ms. Aldrich and other extrinsic evidence that Ms. Aldrich intended all of her assets to go to him, the court refused to consider them because of the “four corners” doctrine. There was no ambiguity within the four corners of the will, therefore no extrinsic evidence was admitted.

It is easy to see how Ms. Aldrich could have simply deleted the residuary clause thinking she didn’t need it, but it is very unlikely that a competent lawyer drafting a will would make that mistake.  If the lawyer had made the mistake, there would potentially have been recourse through the lawyer’s malpractice insurance. It seems that the ease of which will and trust forms are now available on the internet and the fact that many people don’t need a lawyer’s expertise for tax planning under current law will combine to create many more of these problems.  Such problems lead to costly litigation with really no recourse for the families of those “do-it-yourselfers.”

Several states have looked at the issue of whether or not legal form providers are violating unauthorized practice of law statutes, but the cases are by no means consistently decided.  While such issues are being sorted out, the old adage “buyer beware” certainly applies with regard to do-it-yourself wills and trusts. 

A concurring opinion in the Florida case summed it up as follows:

Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer.  However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset.  In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form1.

 1Aldrich v. Basile, 136 So. 3rd 530, 538 (Fla. 2014). 

November 24, 2014

Using a Private Judge in Trust and Estate Litigation

by C. Jean Stewart

In 1981 the Colorado Legislature approved a measure allowing parties to litigation to hire a former judge to serve on their case instead of the judge assigned by the district.  C.R.S. §13-3-111 and Rule 122, CRCP.  In some states, California, for example, this system is called “private judging.”  In Colorado, it is simply called “appointed judges.”  Under the new ICCES filing system the title is “judge pro tem.” 

After the appointment, all of the costs of the case, including the “appointed judge’s fees and costs,” must be paid by the parties “at no cost to the state.”  The appointed judge, or the parties, may later return the case to the original judge and the appointment terminates.

Cases with appointed judges are not procedurally different than routine court cases in Colorado; they are neither more nor less private.  Pleadings are filed in the normal course and records are maintained as part of the routine court files; the Rules of Civil or Probate Procedure apply as appropriate and decisions are appealable.  However, each case will constitute a single or small caseload for the appointed judge and consequently will receive heightened attention and speedier resolution.

All parties in the case must agree on the selection of an appointed judge.  The parties may request that their case be heard by a jury and the case may even be heard in the same courthouse where originally filed, if space and time are available, although cases can also be heard in rented space or in conference rooms made available at no cost by one of the parties’ attorneys.

To have a private judge appointed, the parties must submit a motion to the Colorado Supreme Court that includes all of the statutory requirements, complies with C.R.C.P., Rule 122, sets forth the parties’ request for and agreement to the appointment, and includes the proposed judge’s signed approval of the motion. The actual appointment is accomplished on an Order Appointing Judge that must be signed by the Chief Justice. The estimated fees and costs of using any appointed judge must be referenced in the Motion for Appointed Judge and deposited in advance of the appointment into an “escrow” account.

Counsel for the parties should plan a joint conference call with the proposed appointed judge to discuss the nature of the appointment, the anticipated time commitment, and any special circumstances as early as possible after it is anticipated that an appointment may be sought. Because of the nature of any case involving an appointed judge, all contacts should include notice to all parties and counsel in the case. There should be no actual or attempted ex parte communication.

November 10, 2014

Help Avoid Litigation with an Ethical Will

by Morgan Wiener

Although many people may not have heard of it before (it was news to this author!), the ethical will has been around since ancient times and is an important tool for estate planners, clients, and litigators to be aware of.

Ethical wills began as an oral tradition and as a way to share and pass on a person’s values, life lessons, traditions, morals, ethics, and philosophy.  Ethical wills are a means to pass on words of love and wisdom to future generations and are not designed to air grievances and complaints.

While ethical wills began as an oral tradition, they have also been memorialized in writing for quite some time.  Not surprisingly, people today are using technology to record their ethical wills in new ways.  Modern ethical wills may frequently be recorded in video or other digital format, for example, a slide show that includes photos and audio clips or a Facebook post.

An ethical will is also a mechanism by which testators can provide additional guidance to their loved ones about the intent behind some of their estate planning decisions.  As such, they are akin to letters of wishes and can provide the stories and reasons behind, for example, a particular distribution provision in a trust that is written in impersonal legalese. 

By providing this background and guidance, an ethical will can be used as a tool to help avoid litigation and diffuse tensions when a testator or settlor includes a provision in his or her documents that is subject to interpretation or that may cause conflict, tension, or unhappiness with the beneficiaries.  By understanding the values and reasons behind a testator or settlor’s decisions, a fiduciary may be able to better interpret and administer the estate, and beneficiaries may be more at peace with provisions that would otherwise cause consternation.

For more on modern ethical wills, see this article recently published in the New York Times.

For an example of a modern ethical will, watch Randy Pausch’s Last Lecture on You Tube.

October 7, 2014

The Fall of Colorado’s Same Sex Marriage Ban

By Kelly Cooper

Starting on Monday, marriage licenses were issued in Colorado to couples regardless of sexual orientation.

This change came because the U.S. Supreme Court refused to hear cases from Indiana, Oklahoma, Utah, Virginia and Wisconsin.  What do these five states have in common?  Each of them had banned same sex marriage and had those bans declared unconstitutional by a U.S. Court of Appeals. 

In refusing to hear these cases, the U.S. Supreme Court has upheld three U.S. Courts of Appeal’s decisions declaring the same sex marriage bans unconstitutional and making same sex marriages legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin. 

The impact of the U.S. Supreme Court’s refusal to hear these cases has reached far beyond the borders of those five states.  This is because every state in the U.S. is subject to the decisions made by one U.S. Court of Appeals.  For example, Colorado is situated in the 10th Circuit and the 10th Circuit U.S. Court of Appeals declared Utah’s ban on same sex marriage unconstitutional.  Since Utah and Colorado are both bound by 10th Circuit’s decisions, it is likely that Colorado’s same sex marriage ban would also be declared unconstitutional by the 10th Circuit.  As a result, various county clerks began issuing marriage licenses to same sex couples in Colorado.

Current status: There are 19 states that permit same sex marriages plus the District of Columbia.  Due to the U.S. Supreme Court’s decision not to hear these cases, five more states’ bans on same sex marriage will fall bringing the total number of states permitting same sex marriage to 24.  Due to the U.S. Supreme Court’s decision, an additional six states’ same sex marriage bans are effectively overruled, including Colorado’s.  The other five states are Wyoming, Kansas, North Carolina, South Carolina and West Virginia.  This will bring the total number of states allowing same sex marriage to 30.

 We can expect more developments and changes in this area in the near term, so stay tuned.

July 28, 2014

Philip Seymour Hoffman’s Will Released

by Rebecca Klock Schroer

Philip Seymour Hoffman, famous actor and director, died in February 2014 at the age of 46.  A copy of his will was recently released.

There are a few interesting aspects of Hoffman’s will. 

Hoffman was survived by three children under the age of 12.  His will gives everything to his partner/long-time girlfriend, Marianne O’Donnell, who is also the mother of his three children.  The media seems to be suggesting that he slighted his kids by doing so.  However, Hoffman has been quoted as saying that he did not want his children to become trust fund kids.  Also, the media has glossed over the fact that the will directs that anything O’Donnell disclaims passes to a trust for their son.  Accordingly, there is a chance that the trust for their son would be funded, although it is entirely up to O’Donnell whether she disclaims.

Hoffman’s will was executed in 2004 before his youngest two children were born.  The will refers to Hoffman’s oldest child by name and does not have any language regarding after-born children.  If the will was governed by Colorado law (instead of New York law), the after-born children would be included and would receive a share equal to that of Hoffman’s oldest child under Colo. Rev. Stat. § 15-11-302.  This issue may not come up since there is no indication that O’Donnell plans to disclaim any of the property, which is the only circumstance under which the children would receive something.

Hoffman’s estate is estimated to be worth $35 million and a large portion of that will be paid to the IRS for federal estate tax (an estimated $15 million). If Hoffman and O’Donnell had been married, the entire amount would have passed to her free of estate tax under the unlimited marital deduction.  While some couples choose not to get married for various reasons, marriage would have provided a significant tax advantage in an estate of this size. 

Finally, the will states that it is Hoffman’s strong desire, and not direction, that his son be raised and reside in or near Manhattan, Chicago or San Francisco.  The will goes on to state that if his son cannot reside in any of these cities, he requests that his son visit these cities at least twice a year.  The purpose of this request is so that his son would be exposed to culture, arts and architecture.  While clauses like this may not be legally enforceable, they do provide insight into the testator’s intent. 

May 20, 2014

Trying to Avoid Trusts and Estates Litigation Arising from Divorce

by Rebecca Klock Schroer

Divorce is often a catalyst for trusts and estates litigation, particularly when the possibility of divorce was not contemplated in an estate plan.

One of the most common scenarios that causes litigation is an irrevocable trust in which the spouse is a trustee and/or beneficiary, but there is no language addressing what happens if the couple gets divorced.  This situation is often further complicated if the irrevocable trust is part of a larger wealth transfer plan involving several generations.  A dispute over the rights of a former spouse might be avoided if divorce is expressly addressed in the trust document. 

The Colorado Probate Code does not address what happens with an irrevocable trust upon divorce, but it does address the effect of divorce on many aspects of estate planning, such as powers of attorney, funeral instructions, wills and revocable trusts. 

Colo. Rev. Stat. § 15-11-804 is a detailed statute regarding the effect of divorce on probate and nonprobate transfers.  Generally, it provides that any revocable disposition, fiduciary appointment or power of appointment granted to the former spouse or the former spouse’s relatives prior to divorce is revoked.  The exceptions include a court order, separation agreement, or governing instrument that expressly states otherwise. 

In addition, Colo. Rev. Stat. § 15-11-804  provides that spouses’ interests in property as joint tenants with rights of survivorship are automatically severed and they become tenants in common upon divorce.

Unless expressly provided otherwise, divorce, annulment and legal separation automatically revoke a delegation to a spouse to direct the disposition of the declarant’s last remains. Colo. Rev. Stat. § 15-19-107(4).   The same is true for an agent under a medical durable power of attorney.  Colo. Rev. Stat. § 15-14-506(5)(c).  A spouse’s power as agent under a financial power of attorney is severed at the time a dissolution of marriage action is filed. Colo. Rev. Stat. § 15-14-710.

The provisions of the probate code addressing the effect of divorce should be reviewed carefully, because the definitions and the points of revocation or severance vary depending on the particular statute.  Also, most automatic revocations in the code can be overridden by specific language in the governing document.  There may be unique circumstances where a couple wants to avoid the automatic revocation provided by the code and in those situations, the governing document should state so clearly. 

To the extent that the possibility of divorce can be addressed, particularly when drafting irrevocable trusts, it could help mitigate the litigation that can result if a couple decides to separate down the road.

April 14, 2014

Using a Power of Appointment to Enable the Decedent’s Intent To Be Upheld (even if it might violate public policy)

by Carol Warnick

Individuals have a right to give their property to whomever they see fit. However there are certain limitations that the law over time has imposed, typically based upon a public policy theory. One of those is safeguarding the institution of marriage. But isn’t testamentary freedom also a public policy? One interesting case where these two public policies clashed, but a power of appointment allowed the decedent’s intent to be upheld, was In Re Estate of Feinberg, 919 N.E. 2nd 888 (Ill. 2009). Max Feinberg was an Illinois dentist who was very tied to his Jewish heritage and wanted it preserved in his family. His trust contained a beneficiary restriction clause which read as follows::

3.5(e) A descendant of mine, other than a child of mine who marries outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith) and his or her descendants shall be deemed to be deceased for all purposes of this instrument as of the date of such marriage.

Max’s plan was to give 50% of his estate to his grandchildren in lifetime trusts, but to disinherit any of them who did not marry in the Jewish faith (or whose spouse did not convert to the Jewish faith.) When Max died, none of the grandchildren were married. Would this condition have been void as against public policy because it was a condition subsequent and attempted to restrain marriage? I think that is a distinct possibility. However, the Illinois Supreme Court did not have to address that issue because Max’s wife, Erla, altered his plan in a significant way by exercising a power of appointment give to her by Max in his document. By the time Erla died, four of the five grandchildren had married outside of the Jewish faith. Only one grandson qualified under the beneficiary restriction clause. Erla’s exercise of the power of appointment provided that upon her death, instead of a lifetime trust, $250,000 was to be given to each of her grandchildren who at the time of her death had complied with Max’s beneficiary restriction clause. If a grandchild had not complied, their share was given to their parent instead.

When one of the grandchildren sued, both the trial court and the appellate court held the beneficiary restriction clause was invalid as against public policy and held that the grandchildren who had married outside of the Jewish faith would still receive their interests. The Illinois Supreme Court reversed. The Court stated that it didn’t have to deal with the issue of whether or not Max’s beneficiary restriction clause was a condition subsequent and was trying to control what the children did or didn’t do in the future. The Court only had to deal with Erla’s exercise of the power of appointment which was based upon the marital status of the grandchildren at her death —- either they qualified or they didn’t qualify.

In the last paragraph of the opinion the Court stated, “It is impossible to determine whether Erla’s distribution plan was the product of her own wisdom, good legal advice, or mere fortuity.” The Court went on to hold that “because no grandchild had a vested interest in the trust assets and because the distribution plan adopted by Erla has no prospective application, we hold that the beneficiary restriction clause does not violate public policy.” In essence, Erla’s exercise of the power of appointment in the way she did allowed the beneficiary restriction clause to be upheld.

March 31, 2014

From Wags to Riches: Estate Planning for Your Pets

by Morgan Wiener

DogWhile Trouble, Leona Helmsley’s dog who was left a $12 million trust fund in the late hotelier’s will, may be the most famous four-legged multi-millionaire, Colorado canines can also benefit from trusts created by their owners.  An owner concerned about what will happen to his pets after his death or incapacity may, under Colorado law, provide for his pets by trust or will.

Historically, trusts for the benefit of animals were deemed invalid; however, they are now valid in a majority of states.  Section 15-11-901 of the Colorado Probate Code specifically recognizes the validity of a trust created for the benefit of the settlor’s pets.  This section states that “a trust for the care of designated domestic or pet animals and the animals’ offspring in gestation [at the time the animal becomes a present beneficiary of the trust] is valid.”  Consistent with other sections of the Colorado Probate Code, this section places primary importance on the settlor’s intent and provides that “[a] governing instrument shall be liberally construed to bring the transfer within this subsection…, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor.  Extrinsic evidence is admissible in determining the transferor’s intent.”

One of the issues that used to militate against the validity of pet trusts (other than the fact that the beneficiaries were not human) was the rule against perpetuities.  The concepts of lives in being and measuring lives were difficult to apply to a trust whose main focus was animal lives.  For example, should a dog who outlived the settlor by a number of years count as a measuring life for determining the trust termination date?  Section 15-11-901 addresses this problem by providing both that pet trusts are an exception to statutory and common law rules against perpetuities and that, unless the trust provides for an earlier termination, the trust shall terminate when there is no living animal covered by the trust.

The statue also provides guidance on the administration of the trust.  For example, § 15-11-901(3)(b) provides for distribution of the trust upon termination, and § 15-11-901(3)(a) cautions that except for (1) reasonable trustee fees, (2) expenses of administration, or (3) as expressly provided in the trust, no portion of principal or income may be used for anything other than the benefit of the animal.  Section 15-11-901(3) also addresses the designation of trustees and other persons to enforce the trust.  In these ways, the Colorado Probate Code treats pet trusts very similarly to more traditional trusts and suggests that, if a dispute were to arise regarding a pet trust, standard principles and rules governing trusts would apply.

In addition to using trusts, a pet owner may also provide for the care of his pets in a will.  Although there is no section similar to 15-11-901 addressing bequests to and of pets in a will, there is also no provision of the Colorado Probate Code that suggests such bequests would be invalid.

In addition to being part of the estate planning process, pets can also have a part in estate litigation.  For example, in connection with a will contest, our office has used the inclusion of provisions for the care of the decedent’s pets as evidence that the decedent intended a holographic will to be his will.  We have also litigated issues about the ownership of animals in formal estate proceedings. 

Although there are no reported decisions on § 15-11-901, pet trusts have been the subject of estate proceedings in other jurisdictions.  The executors of Leona Helmsley’s estate, for instance, petitioned the court to reduce the size of Trouble’s trust fund.  New York law governing pet trusts allows the court to reduce the amount of principal in a pet trust if it is determined that the amount substantially exceeds what is required for the care of the pet.  What is considered excessive can certainly vary, as Trouble’s annual expenses were estimated to be around $200,000.  Not to worry though, the New York court left $2 million in Trouble’s trust, ensuring that he could continue to live in luxury and would not spend the rest of his days as a paw-per.

February 17, 2014

Letters of Wishes: Helpful or Hurtful?

by Kelly Cooper and Desta Asfaw

Most of the trusts we see instruct the trustee to consider making distributions for “health, education, maintenance and support.”  While the typical HEMS standard provides certainty in regard to taxes, it does not provide the trustee with any insight into what types of distributions the settlor wanted the beneficiaries to receive from the trust.  In addition, many trusts give the trustee broad discretion in regard to distributions (through the use of the words, “sole” or “absolute”), which puts even more pressure on the trustee to figure out if the settlor would have agreed to make distributions.  Typically, a trustee has little to no guidance from the settlor about his or her desires for the beneficiaries or his or her purposes in creating the trust (other than tax deferral or avoidance).

One solution to this problem is for the settlor of the trust to send to the trustee a non-binding letter of wishes.  Letters of wishes include personal information about the settlor and the beneficiaries, their relationships, the beneficiaries’ abilities and limitations and the settlor’s specific concerns or desires regarding each beneficiary.  Letters of wishes give the trustee more insight into the state of mind of the settlor when exercising discretion, which is helpful when exercising discretion in regard to distributions.

While letters of wishes are generally recognized in the estate planning community, there is very little law regarding the effect of a letter of wishes on a trustee’s discretion, whether reliance on a letter of wishes provides any liability protection to a trustee or if a letter of wishes must be disclosed to the beneficiaries.  If a settlor provides opinions and concerns about the beneficiaries in a letter of wishes that may be hurtful to the beneficiaries, the trustee will then be faced with the difficult decision – do you provide a copy of the letter of wishes to the beneficiaries?  If a claim for breach of the trustee’s fiduciary duty should arise, it may be that the trustee is left with no choice but to make the letter available to the beneficiaries.  In Colorado, there is no case law regarding letters of wishes so it is unknown if the letters of wishes must be disclosed to beneficiaries under C.R.S. § 15-16-303 or whether a trustee can rely on a letter of wishes when making a distribution decision.

Even with the uncertainty relating to the disclosure and use of letters of wishes, any peek into the settlor’s mind and his or her intent regarding distributions will be helpful to a trustee.  If a letter of wishes is admitted into evidence during a dispute, the letter could also prove to be compelling evidence for a judge reviewing a trustee’s exercise of discretion.

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.