2022 Colorado Code
Title 15 - Probate, Trusts, and Fiduciaries
Article 12 - Probate of Wills and Administration
Part 4 - Formal Testacy and Appointment Proceedings
§ 15-12-406. Formal Testacy Proceedings - Contested Cases

1. In a contested case in which the proper execution of a will is at issue, the following rules apply:
   1. If the will is self-proved pursuant to section 15-11-504, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.
   2. If the will is notarized pursuant to section 15-11-502 (1)(c)(II), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.
   3. If the will is witnessed pursuant to section 15-11-502 (1)(c)(I), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.

Source: L. 73: R&RE, p. 1576, § 1. C.R.S. 1963: § 153-3-406. L. 2009: Entire section amended, (HB 09-1287), ch. 310, p. 1687, § 16, effective July 1, 2010.

Cross references: For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101.

COMMENT

2008 Revisions. This section, which applies in a contested case in which the proper execution of a will is at issue, was substantially revised and clarified in 2008.

Self-Proved Wills: Paragraph (1) provides that a will that is self-proved pursuant to Section 2-504 satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit. Paragraph (1) does not preclude evidence of undue influence, lack of testamentary capacity, revocation, or any relevant evidence that the testator was unaware of the contents of the document.

Notarized Wills: Paragraph (2) provides that if the will is notarized pursuant to Section 2-502(a)(3)(B), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.

Witnessed Wills: Paragraph (3) provides that if the will is witnessed pursuant to Section 2-502(a)(3)(A), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred. For further explanation of the effect of an attestation clause, see Restatement (Third) of Property: Wills and Other Donative Transfers § 3.1 cmt. q (1999).

Historical Note. This Comment was revised in 2008.