2021 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 11 - Intestate Succession and Wills
Part 6 - Rules of Construction Applicable Only to Wills
§ 15-11-604. Failure of Testamentary Provision

1. Except as provided in section 15-11-603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.
2. Except as provided in section 15-11-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.

History. Source: L. 94: Entire part R&RE, p. 1006, § 3, effective July 1, 1995.

This section is similar to former § 15-11-606 as it existed prior to 1995.

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Failure of residuary devise is controlled by rule of construction established by subsection (2); however, rule is inapplicable if will indicates contrary intent. Matter of Estate of Fryer, 874 P.2d 490 (Colo. App. 1994) (decided under former § 15-11-606 ).

Where no contrary intent is evidenced in will, application of rule of construction set forth in subsection (2) is proper. Matter of Estate of Fryer, 874 P.2d 490 (Colo. App. 1994) (decided under former § 15-11-606 ).

Rule of construction set forth in subsection (2) properly applied to construe effect of omission where will left estate to niece and three friends and provided for the possibility of the three friends predeceasing testatrix but did not provide for niece predeceasing testatrix. Deceased niece's share properly went to surviving friends. Matter of Estate of Fryer, 874 P.2d 490 (Colo. App. 1994) (decided under former § 15-11-606 ).

The rule of construction codified by this section does not apply if it is contrary to the testator's intent as expressed in the will. Haskins v. Garrett, 820 P.2d 350 (Colo. App. 1991).

If the life beneficiary of the trust predeceases the testator, the remainder beneficiary takes as if the provision for the life estate was not made. But this majority rule of construction will only apply if it is consistent with the language of the will and the circumstances existing at the time the will was executed. Haskins v. Garrett, 820 P.2d 350 (Colo. App. 1991).

Applied in Lujan v. United Bank of Greeley, 701 P.2d 1258 (Colo. App. 1985).