1437 Bannock St., Rm. 230, Denver, CO 80202
Phone 720-865-8310 Fax 720-865-8329
 

   

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Probate Court Opinions from other districts

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Case Subject Index:

A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

-A-

Abuse of discretion

Rodda, 03PR415

Accounting

Fennell, 96PR110 (07/09/99)

Administration of Estate

Beatty - 00PR1499 (09/16/02)
Franklin, 94 PR 908 (10/19/95)
Hutman, 96 PR 1252 (02/17/99)
Kelly, 98PR1876 (02/16/00)

Administration Expenses

Klarner, 04SC214 (Colo. 06/06/2005)

Administration of Trust

Fennell, 96 PR 110 (07/09/99) [99CA1555]
Hirsche, 05PR655 (10/26/06)
[Court of Appeals opinion]

Adoption

Goffman, 98 PR 801 (05/04/99)
Hayward, 95 PR 1448 (10/31/95)

Appeal

Hass Trust, 04 PR 325 (02/10/2005)

Appointment of Guardian ad Litem

Jaworski, 97 PR 138 (09/22/98)

Appointment of Guardian

J.C.T., 98PR163 (1/28/98) [05CA1065] [06SC780]
J.C.T., 05PR895 (6/30/05)

Ambiguity

Richards, 95 PR 228 (11/08/95)
Lilienthal, 00PR290 (04/25/00)

Attendance at Hearing

Milstein - 96 PR 640 (11//04/00)

Attorney Fees

Bennett, 02 PR 1175 (07/25/2003)
Caldwell, 06PR844 (09/13/2006)
Fennell, 96 PR 110 (10/29/99) [99CA1555]
Fennell, 96 PR 110 (09/29/99)
Goldman, 95 PR 1771 (06/05/98)
Hutman, 96PR1252 (02/17/99)
Klarner, 04SC214 (Colo. 06/06/2005)

Laundry - 97PR1719 (11/20/03)
Morse, 97 CV 4213 (01/21/98) [98CA684]

Attorney Misconduct

Meyers, 04PR1450, (10/11/04) [05SA231]

Augmented Estate

S.K. Beren, 96 PR 401 (09/23/99) [98CA2139]
Buchanan, 93 PR 137 (11/27/95)

-B-

Beneficiary

Trattler - 02PR1422 (12/12/02) [Court of Appeals opinion]

Bill of Costs

Breeden, 98 PR 562 (11/10/98) [01CA1545]
Breeden, 98 PR 562 (09/07/98) [01CA2260]

Breach of Trust

Gray - 00PR1758 (01/08/04) [04CA887]
Hirsche, 05PR655 (10/26/06)

Brokerage Accounts

Mocha, 94PR1166 (10/02/95)

-C-

Capacity to Write a Will or Make a Transfer

Bartlett, 98 PR 2085 (09/14/99)
Breeden, 96PR562 (09/26/99) [96CA2012] [98SC570]
Havard, 98 PR 1121 (09/08/99)
Hirsche, 05PR655 (10/26/06) [Court of Appeals opinion]
Price, 98 PR 1258 (09/21/99)
Teigman, 96 PR 1362 (04/29/97)

Capitation Payments

Perry, 04PR1019, (10/23/06)

Certification

Scott, 00PR620 (4/19/00) [03CA631] [05SC199]
Scott, 05PR446 (3/25/05) [05CA1568]

Scott, 00PR225/620 (06/08/2007)
Scott, 00PR225/620 (12/28/2007)

CDHPF

Hulin Family Trust (07PR1230)

Character of Evidence

Rodriquez (02PR747) Hope Marquez v. Lopez

Claim for Compensation for Personal Services

Buchanan, 93 PR 137 (11/27/95)
Johnson, 94 PR 1678 (10/06/95)
MacDonald, 97 PR 761 (09/15/98)

Claims, allowance

Dinkel, 93 PR 2032 (08/22/95)
Gill, 98 PR 958 (09/09/99)
Griffin, 04PR249 (7/22/09)

MacDonald, 97 PR 761 (09/15/98)

Clear and Convincing

Rodriquez (02PR747) Hope Marquez v. Lopez

Common Law Marriage

Goffman, 98 PR 801 (05/04/99) [99CA1216]
Robinson, Jr., 94 PR 2106 (07/17/95)
Yoshimura, 96 PR 1216 (02/24/97)

Rodriquez (02PR747) Hope Marquez v. Lopez

Confidential Relationship

Romero - 01PR1324 (11/21/03) [Court of Appeals opinion]

Conflict of Interest

Cassidy, 95 PR 2375 (11/30/98)
Fennell, 96 PR 110 (07/09/99) [99CA1555]

Conflict of Laws

Hall, 99PR32 (05/01/00)

Conservator, Discharge

Cassidy, 95PR2375 (11/30/98)

Constitutional Right to Adjudicate Claim

Luebke, William, 04PR1182 (9/30/04) [Court of Appeals Opinion]

Contingent Fee Agreement

Goldman, 95 PR 1771 (06/05/98)

Costs

Co-Trustees

Gray, 00PR1758 (01/08/04)

CRE 702

Rodda, 03PR415

-D-

DNA Testing

Mindenhall - 00PR880 (10/3/02)

Deed

Braden, 00PR244 (04/25/00)
Cochran - 00PR115 (10/21/03) [05CS90]
Murphy, 99PR1505 (02/18/00)
Tassian, 04PR340 (6/16/05)

Delegation of Trustee Powers

Gray, 00PR1758 (01/08/04) [04CA887]

Department of Health Care Policy and Financing

Perry, 04PR1019, (10/23/06)

Department of Veteran Affairs

Romero - 01PR1324 (11/21/03) [Court of Appeals opinion]

Determining validity of the will

Rodda, 03PR415

Disposition of Remains

Garcia, 99 PR 856 (05/24/99)

Disqualification

Meyers, 04PR1450, (10/11/04) [05SA231]

Distribution of Estate

Mocha, 94 PR 1166 (10/02/95)
Buchanan, 93 PR 137 (11/27/95)

Divorce

Trattler - 02PR1422 (12/12/02) [Court of Appeals opinion]

Domicile

Braden, 00PR244 (04/25/00)
Rother, 97PR1578 12/09/97)

Due Process
See Notice

-E-

Elective Share

S.K. Beren, 96 PR 401 (09/23/99)
Faller (00PR1035)
Goffman, 98 PR 801 (05/04/99)
Weeks, 97 PR 432 (01/12/98)

Entry of Appearance

Milstein, 96 PR 640 (06/03/97)

Equitable Adoption

Parker, 00PR282 (10/30/00)

Estate Tax Apportionment

Klarner, 04SC214 (Colo. 06/06/2005)

Execution of Will

Romero - 01PR1324 (11/21/03) [Court of Appeals opinion]

Expert admissibility

Rodda, 03PR415

Expert testimony

Rodda, 03PR415

-F-

Fees, Conservator

Beatty - 00 PR 1499 (09/16/02)
Cassidy, 95 PR 2375 (11/30/98
Manning, 05 PR 1074(09/28/07)

Fees, Personal Representative

Buchanan, 93 PR 137 (11/27/95)
Fennell, 96 PR 110 (07/09/99)
Hutman, 96 PR 1252 (02/17/99

Garcia, 07 PR 1033 (05/06/09)

Fees, Trustee

Fennell, 96 PR 110 (07/09/99)
Klink, 6 PR 1979 (06/30/97)

Fiduciary Duty

Fennell, 96 PR 110 (07/09/99)
Havard, 98 PR 1121 (09/08/99)
Hirsche, 05PR655 (10/26/06) [Court of Appeals opinion]
Wait, 06 PR 1112 (04/11/07)

Final Order

Scott, 00PR620 (4/19/00) [03CA631] [05SC199]
Scott, 05PR446 (3/25/05) [05CA1568]

Scott, 00PR225/620 (06/08/2007)

Final Settlement and Distribution of Estate

Buchanan, 93 PR 137 (11/27/95)
Mocha, 94 PR 1166 (10/02/95)

Foreign Trusts

Luebke, William, 04PR1182 (9/30/04) [Court of Appeals Opinion]

Forum Non-Conveniens

Luebke, William, 04PR1182 (9/30/04) [Court of Appeals Opinion]

Fraud

Price, 98 PR 1258 (09/21/99)
Teigman, 96 PR 1362 (04/29/97)

Frivolous and Groundless Defense

Laundry, 97PR1719 (11/20/03)


- G -

Gifts by Fiduciary

Guardian ad Litem

Jaworski, 97PR138 (09/22/98)
Rose, 95 PR 692 (10/16/95)
Pease, 95 PR 1250 (10/04/95)

Guardianship Appointment

J.C.T., 98PR163 (1/28/98) [05CA1065] [06SC780]
J.C.T., 05PR895 (6/30/05)

- H -

Holographic Will

Bartlett, 98PR2085 (09/14/99) [00CA72]
Braden, 00PR244 (04/25/00)
Breeden, 96PR562 (09/26/96)
Hutman, 96PR1252 (02/17/99)


Homestead Exemption

Buchanan, 93PR137 (11/27/95)
Foster, 90PR1979 (08/13/99)


- I -

Illegitimate Children

Candelaria, 99PR1891 (02/24/00)


In Terroram Clause

Beren, 96PR401 (05/18/98)


Instruction/Construction Actions

Beren, 96PR401 (05/18/98)
Booth, 98PR138 (06/09/98)
Candelaria, 99PR1891 (02/24/00)
Klink, 96PR1979 (06/30/97)
Lilienthal, 00PR290 (04/25/00)
Richards, 95PR228 (11/8/95)
Tempel, 96PR2115 (04/17/97)

Interested Person

Evarts, 05 CA 2319 (04/05/07)
Wait, 06 PR 1112 (04/11/07)

Interlocutory Appeal

Scott, 00PR620 (4/19/00) [03CA631] [05SC199]
Scott, 05PR446 (3/25/05) [05CA1568]

Scott, 00PR225/620 (06/08/2007)


Interpretation of Trust Language

Beren, 97PR373 (09/23/98)
Candelaria, 99PR1891 (02/24/00)


Intestacy

Evarts, 05 CA 2319 (04/05/07)
Wait, 06 PR 1112 (04/11/07)

Investments

Laundry, 97PR1719

- J -

Joint and Several Liability

Gray, 00PR1758 (01/08/04)

Joint Tenancy

Cochran, 00PR115 (10/21/03)
Mocha, 94PR1166 (10/02/95)
Murphy, 05PR1191, (03/29/07)
[Court of Appeals Opinion]

Jurisdiction

Levine, 04PR1534 (2/28/05) [Court of Appeals Opinion]
Gill, 98PR958 (09/09/99)
Kelly, 98PR1876, (02/16/00)
Murphy, 05PR1191, (03/29/07) [Court of Appeals Opinion]
Ruston, 06PR1657, (04/10/07)


- K -

- L -

Life Estate in Personal Property

Booth, 97PR138 (06/09/98)

Life Insurance

Trattler, 02PR1422 (12/12/02)

Look Back

Hulin Family Trust (07PR1230)

Look Back Period

Hulin Family Trust (07PR1230)

Lost Wills

Perry, 99PR1020 (03/22/00) [Court of Appeals Opinion]


- M -

Magistrate’s Order-Finality

Dinkel, 93PR2032 (08/22/95)

Maintaining Medicaid Eligibility

Faller (00PR1035)

Malpractice

Levine, 04PR1534 (2/28/05) [Court of Appeals Opinion]


Marriage by Common Law

Goffman, 98PR801 (05/04/99)
Robinson, 94PR2106 (07/17/95)
Yoshimura, 96PR1216 (02/24/97)

Medicaid

Faller (00PR1035)
Hulin Family Trust (07PR1230)

Medicaid Benefits

Hulin Family Trust (07PR1230)

Medicaid Eligibility

Faller (00PR1035)


Medicaid Funding

Pease, 95PR1250 (10/04/95)
Weeks, 97PR432 (01/12/98)
Perry, 04PR1019, (10/23/06)


- N -

Non-Appearance Hearings

Murphy, 05PR1191, (03/29/07) [Court of Appeals Opinion]

Notice

Kelly - 98PR1876, (02/16/00)
Van Dyne, 96PR239 (03/02/98)
Perry, 04PR1019, (10/23/06)
Evarts, 05 CA 2319 (04/05/07)
Wait, 06 PR 1112 (04/11/07)


- O -

- P -

Partition

Murphy, 05PR1191, (03/29/07)

Paternity

Mindenhall, 00PR880 (10/03/02)
Candelaria, 99PR1891 (02/24/00)
Hayward, 95PR1448 (10/31/95)


Personal Representative-Powers

Kelly, 98PR1876 (02/16/00)


Personal Representative-Reasonableness of Fees

Fennell, 96PR110 (07/09/99)
Hutman, 96PR1252 (02/17/99)


Personal Representative-Removal

Fennell, 96PR110 (07/09/99)
Franklin, 94PR908 (10/19/95)
Kubby, 91PR1270 (06/20/96)


Performance of Personal Services

Johnson, 94PR1678 (10/06/95)
MacDonald, 97PR761 (09/15/98)


Personal Injury Claims

Valez, 93PR1260 (04/28/99)
Wood, 04PR1651 (01/28/05)


Power of Attorney

Braden, 00PR244 (04/25/00)
Hall, 99PR32 (05/01/00)

Preemption

Klarner, 04SC214 (Colo. 06/06/2005)

Preponderance of the Evidence

Rodriquez (02PR747) Hope Marquez v. Lopez

Presumption of Paternity

Mindenhall, 00PR880 (10/03/02

Privilege (psychologist-patient)

Fernandez - 99PR1359, 00PR153, (02/11/00)

Pro Rata Liability Statute

Gray, 00PR1758 (01/08/04)

Professional Conduct

Meyers, 04PR1450, (10/11/04) [05SA231]

Property Rights

Perry, 04PR1019, (10/23/06)

Protective Orders

Milstein, 96PR640 (06/06/97)


- Q -

QTIP Trust

Klarner, 04SC214 (Colo. 06/06/2005)

Qualifying Trust

Hulin Family Trust (07PR1230)

Quiet Title

Murphy, 05PR1191, (03/29/07)

- R -

Removal of Fiduciaries

Fennell, 96PR110 (07/09/99)
Franklin, 94PR908 (10/19/95)
Kerns, 99PR1435 (03/16/00)
Kubby, 91PR1270 (06/20/96)
Laundry, 97PR1719 (11/20/03)


Residence

Braden, 00PR244 (04/25/00)

Retaining Lien for Attorney Fees

Morse, 97CV4213 (01/21/98)


Restricted Accounts

Vallez, 93PR1260 (04/28/99)

Right of Survivorship

Murphy, 05PR1191, (03/29/07)

Rule 12 Motion to Dismiss for Failure to State a Claim

Luebke, William, 04PR1182 (9/30/04) [Court of Appeals Opinion]


- S -

Service of Process

Kelly, 98PR1876 (02/16/00)

Separation Agreement

Trattler, 02PR1422 (12/12/02)

Severance

Murphy, 05PR1191, (03/29/07)

Standing of Personal Representative

Van Dyne, 96PR239 (03/02/98)
Wait, 06 PR 1112 (04/11/07)

Statute of Limitations

Gray, 00PR1758 (01/08/04)
Evarts, 05 CA 2319 (04/05/07)
Wait, 06 PR 1112 (04/11/07)


Statute of Limitations, Paternity

Hayward, 95PR1448 (10/31/95)

Summary Judgement

Gossard, 07PR776 (05/2/08)


- T -

Tenancy-in-Common

Cochran, 00PR115 (10/21/03)

Testamentary Capacity

Bartlett, 98PR2085 (09/14/99)
Breeden, 96PR562 (09/26/96)
Hirsche, 05PR655 (10/26/06) [Court of Appeals opinion]
Price, 98PR1258 (09/21/99)
Romero, 01PR1324 (11/21/03)
Schlender, 04 PR 595 (8/30/2005) [05CA2113]
Teigman, 96PR1362 (04/29/97)


Testamentary Intent

Breeden, 96PR562 (09/26/96)
Havard, 98PR1121 (09/08/99)
Lilienthal, 00PR290 (04/25/00)
Richards, 95PR228 (11/08/95)


Tolling Statute

Mindenhall, 00PR880 (10/03/02)

Trusts: Construction of Language

Beren, 97PR373 (09/23/98)
Candelaria, 99PR1891 (02/24/99)
Richards, 95PR228 (11/08/95)


Trustee’s Fees

Klink, 96PR1979 (06/30/97)


Trustee-Removal

Fennell, 96PR110 (07/09/99)
Kerns, 99PR1435 (03/16/00)
Kubby, 91PR1270 (06/20/96)

Scott, 00PR225/620 (06/08/2007)
Scott, 00PR225/620 (12/28/2007)

Trustee-Surcharge

Hedell, 03 PR 171 (06/07/2006)
Scott, 00PR225/620 (06/08/2007)
Scott, 00PR225/620 (12/28/2007)


- U -

Undue Influence

Havard, 98PR1121 (09/08/99)
Price, 98PR1258 (09/21/99)
Romero, 01PR1324 (11/21/03)
Teigman, 96PR1362 (04/29/97)

Uniform Parentage Act

Mindenhall, 00PR880 (10/03/02)

Unjust Enrichment

Trattler, 02PR1422 (12/12/02)


- V -

Venue

Romero, 01PR1324 (11/21/03)

- W -

Waiver Provision

Klarner, 04SC214 (Colo. 06/06/2005)

Will, Construction of Language

See Instruction/Construction.

Will, Execution of

Braden, 00PR244 (04/25/00)
Rother, 97PR1578 (12/09/97)
Tempel, 96PR2115 (04/17/97)
Tompkins, 04PR758 (04/08/05)


- X -

- Y -

- Z -

 

 


In the Matter of the Estate of Karol Lee Griffin, 04PR249

This Order concerns a Petition for Allowance of Claim by Claimant which was filed by Sears Roebuck & Co. on April 4, 2005. The Decedent died on February 5, 2004 and the Personal Representative filed a Notice to Creditors by Publication which was published appropriately and indicated that the claims period expired on July 5, 2004. Sears filed a claim against the estate on November 17, 2004 in the amount of $11, 589.79 and the Personal Representative filed a Notice of Disallowance of Claim stating that their claim was not timely filed.

The Court relied on Tulsa Professional Collection Services Inc. v. Pope, 485 U.S. 478 (1988) and Estate of Russo v. Sunrise Healthcare Corp., 994 P.2d 491 (Colo. App. 1999) as well as C.R.S. § 15-12-803(1)(a)(III) in determining that when a creditor in a probate proceeding is either known to, or reasonably ascertainable by, the personal representative, the creditor is entitled to actual notice of a pending proceeding which may adversely affect the creditor and it is part of the personal representative’s responsibility to make a reasonably diligent effort to identify potential creditors. When the creditor of an estate whose claim was known or reasonably ascertainable to the personal representative does not receive actual notice, the creditor is subject to a general one-year limitation for filing its claim against the estate.

Accordingly, because in this matter, Sears was a creditor whose identity could have been reasonably ascertained by the personal representative by simply opening the decedent’s mail for a reasonable period after death and the personal representative failed to take reasonable steps to ascertain creditors and thus failed to provide Sears with actual notice, Sears’ claim was entitled to the one-year limitation for filing its claim and thus, it’s claim was timely filed.

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In the Matter of the Estate of Michael Paul Tassian, 04PR340

This Order regarded the Motion for Summary Judgment filed by the Defendant in this matter. The decedent was survived by a wife and three children. His Will left all tangible personal property and the residuary estate to his wife and she was nominated and appointed as personal representative. On 5/25, 1973, the decedent executed a Quit Claim Deed to real property to his ex-wife as Trustees of a Family Trust. On October 12, 1981, a Quit Claim Deed was executed and delivered from the decedent’s ex-wife to the decedent as part of a divorce decree. On July 5, 1989, a Quit claim deed was executed by the decedent and his subsequent wife and no grantee was named in this deed. The Plaintiffs, decedent’s three children asserted an ownership interest in the real property asserting that they were the beneficiaries of the Family Trust. The personal representative and the Estate objected.

After elucidating the applicable standards for the circumstances in which summary judgment is appropriate as well as providing background regarding constitutional trusts, the Court found that there were no named or identifiable beneficiaries of the Trust and held that a trust is not created or will not continue unless the terms of the trust provide a beneficiary who is ascertainable at the time or who may later become ascertainable within the terms of the rule against perpetuities. The Court further held that the Trust fails to state essential terms clear enough for any court to enforce equitable duties. Thus, the Trust fails on its face to create a valid, legally binding trust. As a result, the subsequent conveyances of the property to the trust were invalid as a matter of law and the decedent retained complete title to the property. Furthermore, the 1989 quit claim deed had no legal effect since decedent’s subsequent wife could never have been a grantor of the property because she was never on the title and the deed contained no grantee. Thus, the real property was part of the decedent’s estate and the plaintiff’s have no ownership interest in it. Accordingly, the Court granted Defendant’s Motion for Summary Judgment since there is no genuine issue of material fact.

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In the Matter of the Estate of Jean F. Tompkins, 04PR758

The Personal Representative filed a Petition for Construction of Will and Codicil. The decedent left a Will dated July 9, 1984, which left ¼ of her residuary estate to a nephew, and if he predeceased her, then it would go to her other nieces and nephew. The decedent then left a holographic codicil dated 12/10/98 in which she deleted her nephew from her Will. Both the Will and codicil were admitted to formal probate without objection from any party and the decedent’s sole heir was her sister.
The decedent’s sister argued that because the decedent deleted her nephew from her Will, the ¼ share of the residuary estate passes by intestacy and thus, she would take the share. However, the other nieces and nephews mentioned in the Will argued that they were entitled to the ¼ share of the residuary estate.

Issue: Whether within the language of the Will itself, the decedent expressed any intent as to the disposition of this ¼ share in lieu of the nephew that she wiped out of her Will.

Under C.R.S. § 15-10-102(2)(b), the Court concluded that the decedent did have an intent regarding the ¼ share of the residuary estate. The Court was also guided by C.R.S. §15-11-604(2) which puts forth the principal that there is a common law preference for construction of a Will or a part of a Will that avoids intestacy. The Court further relied on the rule of construction that there is a presumption that the testator intended every word, clause or provision in his or her Will to be operative and effective, to have meaning and purpose, and not to be meaningless or superfluous. 96 C.J.S. Wills § 859 (2002).

Accordingly, the Court held that the ¼ share of the residuary estate passed to the decedent’s remaining nieces and nephews, the contingent devisees.

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In the Matter of the Estate of Zachary John Wood, 04PR1651

This Order concerns a Petition for Approval of Proposed Settlement which was filed on behalf of the minor’s parents by counsel for the insurance company that was making the settlement offer but that did not represent the minor or his parents who were unrepresented.

The Court held that counsel for an insurance company involved in a personal injury settlement case cannot also represent the minor/incapacitated person, even in a limited capacity, because it is a clear conflict of interest. Moreover, this behavior violates Rule 1.7 of the Colorado Rules of Professional Conduct even where counsel for the insurance company disclaims any representative capacity as regards the plaintiff or the representative. Accordingly, the Court appointed a guardian ad litem to protect the interests of the minor.

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In the Matter of the Martha R. Gray Testamentary Trust, 00PR1752

Motion for Summary Judgment. In her will, Decedent provided a trust for the benefit of her grandchildren. The grandchildren’s father and two uncles were named as trustees of the trust. The two uncles delegated the management of the trust to the grandchildren’s father, who later dissipated the trust. Grandchildren filed a claim against their uncles for breach of trust. Court held that whether the delegation was proper and whether the applicable statute of limitations barred the claim were issues of fact. Additionally, the Court held that the Pro Rata Liability statute (CRS §13-21-111.5(1)) will apply in this alleged breach of fiduciary duty case.

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In the Matter In the Matter of the Estate of Lettie Milstein 1996-PR-640

This order concerns a son trying to make a “special appearance” on behalf of the Respondent in this case through his attorney, for a specific motion. The Respondent did not consent to this “special appearance” or the representation that the son was acting on her behalf.

The attorney for the son tried to enter his appearance under C.R.C.P 121, Sec. 1-1.1. Entry of Appearance under this rule was improper in a probate proceeding, and the Court concluded that C.R.P.P. 1(a) controlled, since the Rules of Probate Procedure “shall control” the choice when the rules conflict with the Rules of Civil Procedure.

The Court refused to recognize the son’s attempts to circumvent the Respondent’s representation (Respondent had her own attorney) by asserting that he was filing pleadings, or otherwise acting or speaking “on behalf of Respondent.”

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In the Matter of the Estate of Robert Ramon Romero, 01PR1324

Petition for Formal Probate of Will and Formal Appointment of Personal Representative and Petition to Invalidate Will. Decedent left a will that devised his entire estate to his mother and sister. Decedent’s children objected to the probate of this will, asserting that their father either lacked the testamentary capacity to execute the document or had been unduly influenced in the documents execution by his mother. Court found that decedent’s children failed to meet their burden in proving that the decedent lacked testamentary capacity and that the proponent of the will overcame any presumption of undue influence based upon a confidential relationship.

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In the Matter of the Estate of Jonathan A. Laundry, 97PR1719

Conservator’s Motion for Award of Attorney’s Fees. Successor Conservator successfully brought an action to have former conservator removed for violation of Court order as to proper investments of conservatorship funds. Successor Conservator then filed a motion for reimbursement for attorney’s fees against the former conservator, personally, for pleading a substantially vexatious and groundless defense. Although the Court found that the defense that the Successor Conservator was not a suitable replacement for the position was not vexatious, the Court agreed that the defense that certain, risky investments satisfied the Court’s order requiring preservation of principal was groundless. The Court granted the motion for attorney’s fees as to the payment of all the fees of Successor Conservator’s expert, who testified regarding the groundless defense, and the portion of the Successor Conservator’s attorney’s fees associated with the groundless defense.

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In the Matter of the Estate of Billie G. Cochran, 00PR115

Verified Petition to Determine Estate’s Interest in Real Property. The decedent entered into several property transactions with his daughter and her husband. The three individuals originally acquired the property as a joint tenancy. After the daughter obtained a divorce from her husband, the decedent and the ex-husband undertook several acts that seemed to demonstrate intent to destroy the joint tenancy. The deeds were never fully executed or recorded to reflect an ownership as tenancy in common, as the Estate contended. The Court deferred judgment in the matter during the present appeal of Canterbury v. Kovacich in the Colorado Supreme Court.

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In Re the Estate of Larry Trattler, Sr., 02PR1422

A complaint by a personal representative against a decedent’s ex-spouse for proceeds of a life insurance policy was dismissed per CRCP 12(b)(5). Pursuant to a decree of dissolution of marriage entered prior to his death, decedent was required to maintain life insurance to secure financial obligations to his ex-wife. Decedent chose a policy that provided benefits well beyond what was required, and named his ex-spouse as beneficiary. After decedent’s death, his surviving spouse (who was also personal representative) claimed that ex-spouse was required to return all proceeds above the requirements set forth in the divorce decree. The Court held that neither 15-11-804(2) nor any common law theory (such as unjust enrichment) provides a basis for revoking a valid beneficiary designation in this circumstance, and that 15-11-804(2) does not apply where a beneficiary designation is made after a divorce.

[View full text] [Court of Appeals opinion]

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In the Matter of the Estate of Dennis Wayne Mindenhall, 00PR880

Children of decedent filed a Petition in Paternity challenging the assertion made by their mother, Kristy Mindenhall, that they are all biological children of decedent (and that therefore Kristy should receive the entire estate). Kristy argued that the Petition was time-barred pursuant to CRS 19-4-107. The Court held that the Petition was not time-barred on 3 separate grounds: 1) the Court has discretion regarding which of the paternity presumptions (found at CRS 19-4-105) to apply, and not all of them are subject to a limitations period; 2) CRS 13-8-103, Colorado’s general “tolling” statute, does not exclude paternity actions and thus may toll the limitations period urged here; 3) the UPA is not, as Kristy argues, the sole means of establishing paternity, and is often inapplicable to probate proceedings (because it can terminate claims before they accrue).

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In the Matter of the Estate of Juanita Elaine Beatty, 00PR1499

Petition for Order to Use Assets for Payment of Administrative Fees and Costs. Conservator filed a previous petition for fees and costs against the estate. The protected person objected to approximately half of the fees and the Court issued an order approving the payment of the uncontested portion of the request. The conservatorship was established prior to the adoption of the Uniform Guardianship and Protective Proceeding Act; as a result, the Court based its decision on the reasonableness of the fees and the benefit to the estate. The contested portion of the fees accrued after a successor corporate conservator took over the Petitioner’s role as conservator. In fact, a substantial amount of the fees were accrued during the conservator’s attempt to clear her name of any wrongdoing after her removal. The Court disallowed the remaining portion of contested fees.

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In the Matter of the Estate of Matthew Edward Urquhart, 99PR1542
In the Matter of the Estate of Dawn Urquhart, 99PR1543
In the Matter of the Estate of Gregory James Urquhart, 99PR1544


These cases involved a Petition for Establishment of a Court-Authorized Trust. The Petition was filed on behalf of three minors by their mother. The minors were about to receive residuary distributions from a trust that contained no provisions for creation of an ongoing trust for minors. The Petitioner requested that the Court approve the creation of a trust with minors' mother (petitioner) as its trustee that would hold the minors' property without further court supervision.

The Court found that the proposed trust was not an appropriate protective arrangement because it provided no opportunity for independent oversight.

[99PR1542 View full text]

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In the Matter of the Estate of James W. Fennell, 96 PR 110 (10/29/99)*

This Order is the third and final part of the Court’s ruling arising from a Motion for Supervised Administration and a Petition for Removal and Surcharge of Personal Representative and Trustee.

Having concluded that the personal representative and trustee acted properly in defending against the proceedings; that he acted in good faith; that the expenses incurred were necessary to mount a successful defense; and having been exonerated of the charges, the court found that the personal representative and trustee was entitled to reimbursement of his reasonable costs from the estate and trusts.

[View full text]

* This opinion consists of three parts. This is part three of three. See Fennell, 98PR110 (09/29/99) and Fennell, 98PR110 (07/09/99).



In the Matter of the Estate of James W. Fennell, 96 PR 110 (09/29/99)*

The Court denied a Motion for Partial Summary Judgment. A fiduciary is entitled to reimbursement of his litigation costs, including attorneys fees, incurred when successfully defending against a removal and surcharge action.

* This opinion consists of three parts. This is part two of three. See Fennell, 98PR110 (10/29/99) and Fennell, 98PR110 (07/09/99).

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In the Matter of the Estate of Sheldon K. Beren, Deceased, 96 PR 401 (09/23/99)*

Issue Presented: Whether the elective share pecuniary amount is entitled to share in the net probate income of the estate or to receive interest.

The Court held that, under current Colorado law, a surviving spouse is not entitled to income on the elective share under C.R.S. §15-1-417 of the Colorado Uniform Principal and Income Act. Requiring interest on the elective share is a legislative prerogative. It is improper for the Court to graft onto legislative provisions specific benefits that could have been addressed but were not. As a result, the Court declined to legislate an award of interest on the spouse’s elective share.

[View full text]

*This opinion consists of two parts. This is part two of two. See Beren 96PR401 (05/18/98) [View full text]


In the Matter of the Estate of Helen E. Price, a/k/a Helen Elizabeth Price, a/k/a Helen Elizabeth Stephany Price, 98 PR 1258 (09/21/99)

Petition for Formal Probate of Will and Formal Appointment of Personal Representative. Both the decedent’s sister and a friend of the decedent objected to the probate of the decedent’s will on the grounds of undue influence and lack of testamentary capacity.

The Court concluded that the contestants met their burden of proof and found that the decedent did not have testamentary capacity at the time her will was either written or executed. The Court also found that, even if the decedent did have sufficient mental capacity to sign and execute her will, her will would still be held void by the Court as a product of undue influence and fraud.

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In the Matter of the Estate of Allen Bartlett, 98 PR 2085 (09/14/99)

 

Petition for Formal Probate of Holographic Will.

The Court found that the holographic will was written by decedent on July 19, 1998. This finding is supported by the presence of blood on the paper of the document and the evidence of decedent’s suicide attempt on that same day. The document was intended to be the decedent’s last will and it expressly revoked all prior wills. The material provisions of the holographic will are in the decedent’s handwriting.

Colorado law is long-settled that the appointment of a guardian or conservator does not establish lack of capacity to execute a will. Therefore the contestant must prove by a preponderance of the evidence that the decedent lacked testamentary capacity at the time the will was written and cannot rely on the Court’s prior protective orders.

The test for testamentary capacity in Colorado is also reflected in settled law. The testator must know and understand: that he is making a will; the nature and extent of the property he owns; how that property will be distributed under the will; that the will distributes the property as he wishes; and those persons who are the natural ones to receive his property. The Court found that each of these elements was proven in this case.

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In the Matter of the Estate of James L. Gill, 98 PR 958 (09/09/99)

 

James L. Gill and his wife Judith Mae Gill died in an automobile accident on May 16, 1998. On October 15, 1998, Mrs. Gill’s personal representative and her heirs filed a Claim against Mr. Gill’s estate based on her wrongful death. The Claim was disallowed on December 8, 1998. Claimants filed a Petition For Allowance Of Claim on February 5, 1999. Insurers filed a Petition for Declaratory and Other Relief. They asked the court to determine whether the terms of their liability polices require them to defend against and indemnify the Gill estate for the wrongful death claim.

Probate court is a court of limited jurisdiction. Neither the state constitution nor title 13 give the court jurisdiction to hear actions brought pursuant to the Wrongful Death Act, nor for that matter, other non-probate statutory actions. The underlying wrongful death action and declaratory judgment action are dismissed for lack of subject matter jurisdiction.

The Estate filed a Motion for Partial Summary Judgment asking the court to determine that, except to the extent of possible insurance coverage, the claim against the estate is barred because it arose "at or after death." The court FINDS that C.R.S. § 15-12-803(2)(b) is inapplicable because the claim is based on Mr. Gill’s negligence, which occurred before his death.

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In the Matter of the Estate of Dale L. Havard, 98 PR 1121 (09/08/99)

Petition for Return of Estate Property and Surcharge for Breach of Fiduciary Duty.

The Court found that the decedent’s agents breached their fiduciary duty to decedent, an elderly stroke victim. As a result, the Court held them liable for the loss of funds suffered by the principal during their agency. Also, the sale of the decedent’s house during the agency for less than fair market value was held void.

The Court also ordered that both agents forego any fee otherwise paid to or due to them for their services as agents.

The Court found that the three wills prepared by the agents and signed by the decedent were the product of undue influence and should be held void by the Court.

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In the Matter of the Estate of Juanita M. Foster, Deceased, 90 PR 1979 (08/13/99)

Claim of Homestead Exemption is denied. The fact of claimant’s use of the subject property as his residence was contested.

Claimant provided no evidence at the hearing that the residence in question was occupied by him as his home other than his own testimony. His driver’s license (which the Court would regard as proof of residency) did not list the residence in question as his home. This evidence casted doubt on claimant’s credibility.

Based upon the uncertainty of the evidence provided as to claimant’s residence, the Court found that the burden of proof was not met. Accordingly, the Court did not allow the homestead exemption.

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In the Matter of the Estate of James W. Fennell, 96 PR 110 (07/09/99)*

Heirs and beneficiaries of testamentary trust filed a Motion for Supervised Administration and a Petition for Removal and Surcharge of Personal Representative and Trustee.

The Petition for Removal and Surcharge of the personal representative and the Motion for Supervised Administration were both denied upon the Court’s finding that the allegations of wrongdoing were not supported by the evidence. Fees of the fiduciary and his advisors were allowed.

* This opinion consists of three parts. This is part one of three. See Fennell 96PR110 (10/29/99) and Fennell, 96PR110 (09/29/99).

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In the Matter of the Estate of William M. Booth, 97 PR 138 (06/09/99)

Co-Personal Representatives Petition for Instructions concerning surviving widow’s rights to the consumption of 67 bottles of wine owned by the estate. The parties stipulated that the wine collection is part of the devise of a legal life estate to widow in personal and household effects. The testator’s children (from a prior marriage), are the remainder beneficiaries.

The Court concludes that the intent of the testator was to give the specific gift of the personal and household effects to his surviving spouse in the form of a life estate, regardless of the deterioration in their condition or value. Where normal use and enjoyment of specifically devised personal property includes consumption, such as the wine collection, the life tenant is entitled to reasonable consumption even if the remaindermen’s interest is thereby extinguished.

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In the Matter of Francisco Garcia, 99 PR 856 (05/24/99)

An interested party petitioned for an Order Determining Control Over Remains and a Request for a Temporary Restraining Order. Petitioner requested an order from the Court directing Crown Hill Cemetery and Mortuary to ignore the effect of a New Mexico state court order. The Court held that Petitioner should appeal the New Mexico order rather than seek a contradictory order from a Colorado Court. The petition and restraining order were denied.

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In the Matter of William A. Goffman, 98 PR 801 (05/04/99)

A Petition to Determine Common-Law Marriage.

Petitioner did not establish by a preponderance of the evidence that a common law marriage existed between her and the decedent. Of significance to the Court was the fact that Petitioner did not assume the marital relationship at significant times. For example, petitioner was a professional tax return preparer. She prepared the decedent’s income tax returns during the time she claimed the marriage existed. She claimed single, unmarried status for decedent, and both she and decedent signed and filed these returns. Petitioner also indicated that she was divorced on her own medical records.

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In the Matter of Solee Vallez, 93 PR 1260 (04/28/99)

On August 17, 1993, this Court entered an Order Granting Leave to Settle Personal Injury Claim. The order directed Lisa Aleman to deposit funds into a restricted account for Solee Vallez’s benefit. The bank that received and accepted the funds allowed $3,715.00 to be withdrawn from the account without Court order. The Bank appeared before the Court on a show cause order. The Bank was ordered to restore the account to its proper balance including interest lost. The Court will consider whether to require payment of Court costs incurred.

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In the Matter of John Hutman, 96 PR 1252 (02/17/99)

Some devisees filed an Objection to Personal Representative’s Schedule of Distribution, Amended Accounting, and the Petition for Authority to Pay Personal Representative’s Fees and Costs from the Estate Funds.

The Court concluded that the personal representative defended the action in good faith and was entitled to retain counsel at estate expense to rebut the allegations. Objectors did not prove that the personal representative should be surcharged. The Court considered the fee paid to the personal representative and to the personal representative’s attorneys in accordance with the statutory standards set out in C.R.S. § 15-12-721. The fees were approved as reasonable.

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In the Matter of Felice Garcia, 07 PR 1033 (05/06/09)

The court considered the request for personal representative fees and concluded that the hourly rate was excessive for services such as yard work, sweeping, cleaning and gardening.

[View order]

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In the Matter of the Estate of Alfreda Cassidy, 95 PR 2375 (11/30/98)

Conservator Wells Fargo Bank moved For Approval of Its Fees and For Discharge as Conservator for Alfreda Cassidy; and Co-Guardian Stephanie Conrardy’s moved for Approval of Fees and for Discharge as Co-Guardian. Mrs. Cassidy objected to the actions of the conservator and co-guardian and objected to the requested fees.

The Court approved the conservator’s actions and its requested fees. The conservator was entitled to make distributions for attorneys fees incurred by the guardian and conservator and fees incurred for the support, care, or benefit of Mrs. Cassidy, without Court approval. Such distributions would not be surcharged against the Bank unless it was proven that the conservator knew the attorney fees were improper, that the guardian was deriving personal financial benefit from the distribution, or that the co-guardian’s recommendations were clearly not in the best interests of Mrs. Cassidy. After reviewing all of the evidence, the Court concluded that the conservator acted properly.

In her Motion for Approval of Fees and Discharge, Conrardy asserts that the guardianship services provided to Mrs. Cassidy were necessary, reasonable, and beneficial to Mrs. Cassidy; and that in accordance with the financial plan filed with and approved by the Court, Conrardy is entitled to reasonable fees for her services. The Court considered all of the objections made by Mrs. Cassidy to the fees requested and concluded that the objections were primarily directed to the hourly rates and billing practices. The fees were allowed in part and disallowed in part.

Personal animosity between the guardian and Mrs. Cassidy’s attorney caused errors in judgment on both sides and resulted in unnecessary fees that should not have been paid by Mrs. Cassidy. The Court declined to award punitive damages against any party but required that each side pay his/her own attorney fees.

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In the Matter of The Estate of Spicer H. Breeden, 98 PR 562 (11/10/98)*

 

The Court considered Respondents’ Motion for Post-Trial Relief Under C.R.C.P. 59(3) and (4) and C.R.C.P.60(A). Respondents requested that the Court reconsider and amend its Order of September 17, 1998 approving portions of petitioner’s Bill of Costs. The Court revoked its Order on Bill of Costs and issued this amended Order:

Petitioner filed the Bill of Costs outside the statutory time frame for doing so. Petitioner’s failure to file within 15 days of the entry of the Court’s order placed the granting of the Bill of Costs within the discretion of the Court. In considering a Bill of Costs, the Court must determine 1) whether adequate documentation was supplied to support the costs; and 2) the reasonableness of the costs.

Because of Petitioner’s 18-month delay in submitting the Bill of Costs, it was necessary to scrutinize the support for and reasonableness of the costs very closely. No documentation was submitted by Petitioner to support any of her claimed costs. The Court was unable to make a finding as to the reasonableness of the costs. Therefore, Petitioner’s Bill of Costs was denied.

* This opinion on bill of costs consists of two parts. This is party two of two. See Breeden, 98PR562 (09/07/98).

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In the Matter of the Harry H. Beren Trust D, 97 PR 373 (09/23/98)

 

In this case for interpretation of trust language, the trustees and some of the beneficiaries moved for summary judgment. The movants argued that the trust did not terminate upon the death of either the settlor or the first successor trustee. Further, they moved for summary judgment on the basis that the trust language is not ambiguous. The Court agrees and refuses to allow parol evidence to vary the language of the trust agreement.

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In the Matter of the Estate of Anna Jaworski, 97 PR 138 (09/22/98)

 

The Department of Social Services moved for Appointment of Guardian ad Litem for the spouse of an allegedly incapacitated person, arguing that it is in the Court’s discretion to make such an appointment. The motion was denied.

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In the Matter of the Estate of Mary Regan MacDonald, 97 PR 761 (09/15/98)

 

A friend of decedent filed a Petition for Allowance of a Claim for personal care and services he rendered to decedent and reimbursement of expenses he advanced decedent prior to her death.

Petitioner's claim for services is based on express contract, quantum meruit, promissory estoppel, equitable estoppel, implied contract, unjust enrichment, and resulting or constructive trust. The Court found no express contract.

The parties raise two competing theories of implied contract. The estate argues that contract implied-in-fact is the appropriate theory, while the Petitioner argues that contract implied-in-law is appropriate.

The elements of a contract implied-in-fact are 1) the plaintiff rendered services to the defendant; 2) the plaintiff did so without a specific agreement as to payment, but with the reasonable expectation that he would be paid the reasonable value of such services by the defendant; 3) the defendant requested or accepted such services expecting to pay for them or under such circumstance that she knew, or as a reasonable person should have known, that the plaintiff expected to be paid; and 4) the reasonable market value of the services rendered. Under this analysis, Petitioner's claim fails. The evidence does not support the contention that petition had a reasonable expectation that he would be paid for the services he performed for the decedent. Therefore, it can not follow that the decedent knew or should have known that the petitioner expected to be paid.

The elements of a contract implied-in-law are: 1) a benefit conferred upon defendant; 2) the defendant realized or appreciated the benefit; 3) the defendant accepted the benefit under circumstances where it would be inequitable for the defendant to retain it without paying its value. Whether the petitioner can satisfy these elements becomes irrelevant if there is a familial relationship between the parties. If the relationship between the parties is familial, the implied contract is automatically negated and replaced with a presumption that the services were gratuitous. The relationship between the petitioner and the decedent was one of mutual love and affection. Petitioner failed to provide sufficient evidence to overcome the presumption.

As to petitioner's reimbursement claim, petitioner failed to provide adequate documentation to prove he actually incurred the expenses.

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In the Matter of the Estate of Spicer H. Breeden, 96 PR 6562 (09/07/98)*

 

This matter comes before the Court on Petitioner’s Bill of Costs. Petitioner filed the Bill of Costs outside the statutory time frame for doing so. Respondents argue that because Petitioner did not file a motion for extension of time to file a Bill of Costs, her claim should be barred. Colorado case law does not support that contention. Therefore, because the purpose of the rule would not be frustrated, in its discretion, the Court considered the Bill of Costs to have been timely filed.

The Court awarded the Bill of Costs to Petitioner in the amount of $3,182.01 for travel and expert fees, of experts, services and transcriptions costs of reporting services and of a video. All defending parties were held jointly and severally liable for this amount. The Court denied Petitioner’s request for office costs in the amount of $3,282.28 connected with trial preparation.

* This opinion on bill of costs consists of two parts. This is part one of two. See Breeden, 98PR562 (11/10/98).

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In the Matter of the Estate of Monte Goldman, 95 PR 1771 (06/05/98)

 

Petitioner performed legal services in Oklahoma for the Personal Representative of the estate. Petitioner asserts that, in accordance with the fee agreement and Oklahoma law, it is entitled to a "fee enhancement" of $63,422.

The Court first determined which state law was applicable. The Court held that in this case, the presumption that the state where services are performed is the state having the most significant contacts, is rebutted by the fact that the Petitioner was aware that the personal representative was a Colorado fiduciary and was governed by the laws and courts of Colorado. Therefore, the Court concludes that Colorado law applies to this issue.

The letter to the personal representative describing the "fee enhancement" arrangement was not an enforceable contract and that it was also an invalid contingent fee agreement under Colorado law.

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In the Matter of the Estate of Sheldon K. Beren, 96 PR 401 (05/18/98)

 

The personal representative petitioned for Instructions Concerning the Obligation of the Testamentary Charitable Trust to Contribute to the Satisfaction of the Elective Share Amount. Some of the devisees argued that all of the devisees were required to contribute to the surviving spouse’s elective share amount. The beneficiaries of the charitable trust argued that a charitable trust is exempt from contribution. First, the charities argued that it was not the decedent’s intent that the elective share be satisfied from the charitable trust. Second, they argued that the statutory language of §15-11-203(2), "equitably apportion," gives the Court authority to avoid the pro rata contribution rule by finding an equitable basis to exonerate the charitable trust.

The Court concluded that the entirety of the will did not manifest any intent to exempt the charitable trust in the event the spouse elected against the will. Further, the legislative history did not support the statutory interpretation proposed by the charities. Section 203 requires that all devisees contribute to the spouse’s elective share in proportion to their interests in the estate. The decedent did not manifest an intent to vary from this statutory mandate.

*This opinion consists of two parts. This is part one of two. See Beren 96PR401 09/23/99).

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In the Matter of the Estate of Gladys M. Van Dyne, 96 PR 239 (03/02/98)*

 

The Court reviewed the Magistrate’s December 22, 1997 Order. On December 15, 1997, a hearing began before the Magistrate to determine whether Petitioner had good cause for not having timely-filed an objection to admitting the will to probate. At the hearing, the Magistrate determined that the Personal Representative lacked standing to participate in the hearing and continued the hearing to a later date, so as to allow adverse parties in interest to participate if they wished on the basis that they may have mistakenly assumed that the Personal Representative would be opposing Petitioner’s motion.

The Court found no error in the Magistrate’s order. Due to the misunderstanding that the Personal Representative could represent their interests, none of the devisees were present in person or by counsel. Basic due process requires that the non-appearing parties be allowed to make informed decisions about whether or not to oppose Petitioner’s efforts (Opinion by J. Benton).

* This opinion consists of two parts. This is part two of two. See Van Dyne, 96PR239 (12/22/97).

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In the Matter of the Estate of Glady M. Van Dyne, 96 PR 239 (12/22/97)*

 

A motion to vacate an order admitting will to probate was set for hearing. At the hearing, the Magistrate ruled that the Personal Representative lacked standing to oppose the objector's position. Although a will was admitted, its validity was now in question. Until the question was settled, the Personal Representative should not be concerned, in a legal sense, with the question of who may be declared successor to the estate. Its duty, at this point, is to preserve the estate pending the court's determination of whether final distribution should be paid to devisees under the will or to heirs at law. (Opinion by Magistrate Franklin)

* This opinion consists of two parts. This is part one of two. See Van Dyne, 96PR239 (03/02/98).

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In the Matter of the Estate of Frederick H. Weeks, 97 PR 432 (01/12/98)

 

Colorado law provides for the creation of a statutory, discretionary trust to be funded with that portion of elective share and supplemental elective share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others. The property contained in an elective share trust must be distributed in such a manner as to protect the surviving spouse’s eligibility for Medicaid benefits, and such property is not available to pay for the cost of her care which is otherwise provided for by the Colorado Medicaid program. The surviving spouse has no right to compel distributions from the trust, and does not have the right to terminate the trust unless she regains legal capacity.

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Phoenix Home Life Mutual Insurance Company v. Morse, 97 CV 4213 (01/21/98)

 

A law firm requested enforcement of an attorneys fee retaining lien against funds held in the Court’s Registry. The father and maternal grandparents of minor children disagreed as to who should control insurance proceeds payable for the benefit of the children, which led to hostile and protracted litigation. The insurance company interpled the proceeds of the policy and deposited the full amount into the registry of the Court. Eventually, the parties stipulated to the control of the proceeds. The father’s counsel filed a lien claim for $38,831.77 against the proceeds. Grandparents’ counsel made no claim for fees.

A retaining lien can only be asserted against funds owed to a client to compensate the attorney for services performed for or on behalf of the client. The law firm represented the father in several capacities related to this litigation, including as conservator to the children, but the law firm did not represent the children. There was no dispute that the funds were to benefit the children exclusively. The fees incurred by the father were grossly disproportionate to the benefit received by the children and therefore the lien was disallowed.

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In the Matter of the Estate of Larry E. Rother, 97 PR 1578, (12/09/97)

 

The decedent may have died a domiciliary of the state of Nebraska. The facts alleged by the parties raise material questions of fact concerning the decedent’s domicile at the time of his death. Under these circumstances, the Court denied summary judgment on the question of domicile.

The purported will offered by Petitioner cannot, as a matter of law, be admitted to probate as a will under the Colorado Probate Code. A document may be found to be a valid will, and hence, admitted to probate if either the testator set down the entire document or material portions thereof in his own handwriting, or if the document was signed by the testator in the conscious presence of at least two individuals who then also signed the will either before or after the testator’s death. There is no factual dispute that the testator’s signature on the document offered by Petitioner was not witnessed. As a matter of law, the document cannot be admitted to probate as a will under any provision of the Colorado Probate Code. The Court granted summary judgment on the question of validity of the will.

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In the Matter of the Separate Trust for the Benefit of Bettina Bancroft Klink Under the 1941 Hugh Bancroft, Jr. Trust, 96 PR 1979 (06/30/97)

 

Petition for Instructions filed by the trustees to determine the proper apportionment and distribution of certain 1996 trust income which the trustees had accumulated and not yet distributed as of the date of the income beneficiary’s death. The co-executors of the income beneficiary’s estate petition sought a Court Order stating that the trustees had improperly 1) allocated all of their fees solely to income during their administration of the trust; 2) allocated those fees between principal and income; and 3) directed the trustees to refund to the estate some of the trustees fees charged during their administration and allocated to the income beneficiary.

On the trustees’ Petition for Instructions, the Court found that the trustees are required to distribute ½ of the 1996 accumulated income to Ms. Klink’s estate. The trustees, in their discretion, may distribute the other half to Ms. Klink’s estate or to the remainderman. This finding was consistent with the trust language and the settlor’s intent.

As to the proper allocation of trustees’ fees, the Court turned to the settlor’s intent and the trust language. Again, the settlor left it in the trustees’ discretion from which funds the trustees’ fees were paid. The trustees used their best informed judgment in good faith in exercising their discretion as to the allocation of trustees fees. The trustees properly considered a variety of relevant factors, including the trust’s generation-skipping exemption status, estate planning objectives of the settlor, tax legislation, and past practice. Therefore, the Court denied the estate’s petition to require the trustees to reallocate the fees.

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In the Matter of the Estate of Letty Milstein, 96 PR 640 (06/03/97)

 

Permanent protective orders are sought for this person. The determination of incapacity and the need for protection are not before the Court, these issues having previously been heard or stipulated. Prior to the permanent orders hearing, the incapacitated/protected person's counsel advised the Court that Mrs. Milstein was unable to effectively participate in a relationship with counsel. The Court appointed a guardian ad litem.

Mrs. Milstein's primary concern was avoiding public scrutiny. There were reasonable grounds to believe that she could be photographed or otherwise subjected to public humiliation if required to attend the hearing. Mrs. Milstein had also been found by the Court to be a person susceptible to influence and intimidation. These facts, together with the medical report suggesting a significant potential health threat, prompted the Court to excuse Mrs. Milstein from attendance at the hearing.

In order to accommodate the statutory mandate that the wishes of the incapacitated/protected person be taken into account in connection with the fashioning of final protective orders, the Court met with Mrs. Milstein in her home with the guardian ad litem and her care-givers present. Only the two adult children of the incapacitated/protected were excluded. The Court reporter made a contemporaneous record of the hearing.

After the home hearing and before the permanent orders hearing, the Court declined to recognize an entry of appearance by new counsel for the incapacitated/protected person, based on the Court's findings that Mrs. Milstein (1) did not seek counsel to represent her and denied knowing the attorneys who were purporting to enter the case on her behalf and (2) the attorneys had not contacted Mrs. Milstein's Court-appointed fiduciaries as required by law and professional regulations.

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In the Matter of the Estate of John Keith Tempel, 96 PR 2115 (04/17/97)

 

Petition for Instructions. Issue: whether unsigned documents could, as a matter of law, be admitted to probate in Colorado, and thus expose Petitioner to potential fiduciary liability, as the named personal representative in one of the documents, if Petitioner failed to offer the document for probate as a will.

The documents were not signed, and therefore, cannot be admitted to probate. Colorado law allows for probate of improperly executed documents if the proponent of the will establishes by clear and convincing evidence the decedent intended the documents to constitute the decedent’s will. However, in this case, the decedent did not execute the documents at all. The questioned documents do not fall within the intended exceptions to compliance with statutory formalities. As a matter of law, the questioned documents cannot be admitted to probate in Colorado and Petitioner cannot be subject to a claim for breach of fiduciary duty for failure to offer any or all of the documents or failure to give notice to prospective devisees named therein.

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In the Matter of the Estate of Chiel Teigman, 96 PR 1362 (04/29/97)

 

A Complaint to Quiet Title was filed by co-conservataors of an incapacitated adult. The issue before the Court is whether Mr. Teigman lacked the requisite mental capacity to make a transfer of real property or whether the conveyance was procured by undue influence. Alternatively, the co-conservators assert that Mr. Teigman was the victim of a fraud and that the property should be restored to the estate.

Based upon the evidence, the Court found that at the time of the transfer, Mr. Teigman understood the nature and purpose of the transfer, he remembered the natural objects of his bounty, he comprehended generally the nature and extent of the property, and he understood the nature and effect of the disposition.

The co-conservators had the ultimate burden of proof and must prove undue influence or duress by a preponderance of the evidence. The co-conservators argued that a confidential relationship existed, thereby raising a presumption of undue influence in this transaction. The Court agreed. However, the co-conservators did not present the Court with evidence that it was more probable than not that Mr. Teigman’s free will was displaced at the time of the conveyance. The Court found that there was not sufficient evidence to prove that Mr. Teigman did not act voluntarily.

[View full text]

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In the Matter of the Estate of Tim John Yoshimura, 96 PR 1216 (02/24/97)

 

Petitioner filed a claim based on common law marriage to the decedent.

The requirements to establish a common law marriage are: 1) mutual consent or agreement of the parties to be husband and wife; followed by 2) mutual assumption of the marital relationship. The burden of proof is on the party claiming that the marriage in fact existed.

The Court found that the Petitioner and the decedent did not mutually agree to be husband and wife. The perceptions of the outside world as to their relationship were inconsistent and inconclusive. The evidence established that the decedent wanted someone to assist him with his children, particularly his infant son. Petitioner filled this role. Overall, there was insufficient evidence from which the Court could conclude that Petitioner proved, by a preponderance of the evidence, that she and the decedent intended to marry, or were married.

[View full text]



In the Matter of the Estate of Spicer H. Breeden, 96 PR 562 (09/26/96)

 

Petition for Formal Probate of Will and Formal Appointment of Personal Representative. Petitioner offered a handwritten document for probate as the holographic will of the decedent. Objections were filed by heirs and devisees of the decedent under a prior will.

The objectors contended that the document did not satisfy Colorado's requirements for a will. While the document was signed, it was signed after the postscript at the bottom of the page and not after the last dispositive provision. Also, they contended that the decedent did not intend the document to be his will. They argued that prior wills of the decedent indicated his knowledge of the legal formality of wills, and that the holographic will did not reflect his prior pattern. Finally, the objectors contended that at the time he drafted the document, the decedent lacked the requisite mental capacity to make a will. They argued that during the time the holographic document was written, the decedent had abused alcohol and cocaine, suffered from a psychotic mental illness, and exhibited insane delusions.

The handwritten document met the statutory requirements of a holographic will. The Legislature has not imposed a format requirement for placement of the signature, and the Court did not do so in its place. Decedent had the intent to write a will when he wrote the holographic document. A prior will of the decedent's included a holographic codicil, indicating that decedent understood that handwritten instructions could be given legal effect. Additionally, the language he used in the holographic document is indicative of dispositive intent.

The Court concluded that the decedent possessed the requisite capacity to execute a will. The objectors did not prove, by a preponderance of the evidence, that decedent's chronic use of alcohol and drugs on the days preceding his death so impaired his mind and reason as to render him not of sound mind under the applicable legal standard, nor did they prove that decedent's delusions caused him to misapprehend the nature of his property, his relationships with the objectors, or the manner in which he wished to dispose of his property.

[View full text]

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In the Matter of the Estate of Dan Kubby, 91 PR 1979 (06/20/96)

 

Decedent’s children filed a Petition for Removal of Personal Representative and Trustee and appointment of Successor Personal Representative and Co-Trustees.

The Court concluded that the acts and omissions of the personal representative and trustee constituted cause for his removal as personal representative pursuant to C.R.S. § 15-12-611(2), which supports removal when it would be in the best interests of the estate. The Court further concluded that he should be removed as personal representative and trustee because the hostility and ill-feeling between the fiduciary and this group of beneficiaries had reached such a level that future cooperation and proper administration of the estate and trusts were improbable.

[View full text]



In the Matter of the Estate of Winnona Walsh Buchanan, 93 PR 137 (11/27/95)

 

THIS MATTER comes before the Court upon a Petition for Final Settlement and Distribution of the Estate of Winnona Walsh Buchanan, filed by co-personal representatives Roy and Roger Walsh. The decedent's estranged husband, Harold, objects to the Petition on five grounds: 1) The rate of compensation sought by Roy and Roger as personal representatives is unreasonable; 2) Roy and Roger charged the estate for services rendered before they were appointed as personal representatives; 3) Roy and Roger sought reimbursement for the legal expenses they incurred when they appealed Judge Benton's decision to allow Harold to collect from the estate the Colorado homestead exemption; 4) Roy and Roger charged the estate the entirety of the fees incurred to clear title to mountain property in which the estate owned only a 3/8 interest; and 5) the erroneous allocation of certain individual items in the Schedule of Distribution.

The Court concluded that the objections were not well founded and granted the petition for final settlement and distribution.

[View full text]

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In the Matter of the Estate of John "Jack" Lloyd Richards, 95 PR 228 (11/08/95)

 

The guardian for the decedent’s children objected to the Petition for Final Settlement and Distribution. The question before the Court is whether specific devises of the decedent’s will should be paid from life insurance proceeds which were left in trust for the benefit of his children.

Petitioners are co-personal representatives of the decedent’s estate and co-Trustees of separate trusts created for the benefit of decedent’s children. Before his death, decedent changed the beneficiaries of his life insurance policies from the children to the "co[-]trustees of my will dated 7 Dec 94." Petitioners assert that such language is ambiguous and that the life insurance proceeds should be placed in the estate, and after expenses and specific devises are paid, the remainder should be placed in trust for the benefit of the children.

The Court finds that the testamentary language is not ambiguous. First, making the proceeds of life insurance payable to a trustee named in a will is exceedingly common. Second, the failure to include in the will language directing the trustees to hold all funds they receive from within or outside of the estate does not create an ambiguity as to the direction to pay. The Court directs the co-personal representatives to place the proceeds from the two life insurance policies into accounts owned by them as co-trustees of the trust established by the decedent’s will for the benefit of the decedent’s children and to administer and distribute the trust accounts in accordance with the decedent’s will.

[View full text]



In the Matter of the Estate of LeRoy Hayward, 95 PR 1448 (10/31/95)

 

Motion for Summary Judgment on Respondent’s Objection to a Petition for Adjudication of Intestacy, Determination of Heirs and Formal Appointment of Personal Representative.

Respondent objected to the Petition on the grounds that he is the child of the decedent and therefore the decedent’s only heir. Petitioner moved to dismiss based on the statute of limitations of 18 years for a child to bring an action to determine paternity. The Court found that, regardless of any ambiguity in the relevant statutory provision, C.R.S. § 15-11-114, the Respondent’s effort to establish a parent and child relationship with the decedent as time-barred.

The Motion for Summary Judgment is GRANTED, as no genuine issue of material fact exists. Respondent is not an heir of the decedent and may not attempt to show he is an heir.

[View full text]

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In the Matter of the Estate of Ola Jean Franklin, 94 PR 908 (10/19/95)

 

Ola Jean Franklin died on April 27, 1994. Clementine Brown was appointed Personal Representative, but failed or refused to carry out her duties, and failed to act impartially towards the beneficiaries. In November 1994, the decedent’s surviving spouse, Horace Hamilton, filed a Petition to Take Elective Share. Clementine denied the Petition and the matter was set for hearing. Clementine failed to appear at the hearing, and the Court awarded Horace an elective share in the decedent’s estate.

In May, 1995, Horace petitioned the Court for Removal of the Personal Representative. At the hearing, Clementine appeared with counsel. The Court found that good cause was shown and that Clementine should be removed as personal representative. In July, the Court appointed the Public Administrator as Successor Personal Representative.

The Special Administrator is to take control of and possession of all the assets, is authorized to take any legal actions necessary, is to file with the Court and serve on all interested parties a complete inventory, is to be given the complete cooperation of any party with possession or knowledge of any assets, and is to prepare and file a plan of distribution of the estate.

[View full text]

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In the Matter of Marion Levy Rose, 95 PR 692 (10/16/95)

A Petition to Authorize Conservators to Make Gifts is granted for the following reasons.

Evidence in this case proves that the protected person had been especially generous to donees prior to her disability. Over the past nine years the protected person had made regular gifts to the suggested donees. She also had funded an irrevocable trust in order to take advantage of the generation skipping transfer exemption. The contemplated gifts are half of her yearly income and only a fraction of her estate. Petitioners have cleared the extra hurdle required of a fiduciary who proposes a gift to himself and therefore allows the Petition.

[View full text]



In the Matter of the Estate of Genevieve Marie Johnson, 94 PR 1678 (10/06/95)

 

Petitioner provided personal services to the decedent after the Estate denied her claim for compensation, she petitioned for this relief, a contract implied-in-fact, a contract implied-in-law, and detrimental reliance.

The elements of a contract implied-in-fact are consideration and mutual asset. The decedent did not expect to pay Petitioner for the services performed. The parties did not mutually assent to payment, and the Court cannot hold the decedent to any bargain.

The elements of a contract implied-in-law, also known as unjust enrichment, are: 1) a benefit conferred upon defendant; 2) which was accepted by defendant; 3) under circumstances where it would be inequitable for the defendant to retain it without paying its value. The Petitioner has established that she conferred a benefit upon the decedent, which the decedent accepted. In determining equity, the Court asks whether the decedent reasonably expected not to have to pay for Petitioner’s labor. Petitioner presented no evidence that the decedent expected to pay for the services, the services were not so extraordinary as to alert a reasonable person of the possibility of indebtedness, and Petitioner and the decedent were not of such distant relations so as to put the decedent on notice that the services were not free. Therefore, Petitioner’s contract implied-in-law claim failed.

The elements of detrimental reliance are: 1) reasonable reliance and change of position by the plaintiff; 2) caused by an act or omission by the defendant; 3) resulting in a loss to the plaintiff. Petitioner’s detrimental reliance claim must fail because the decedent did nothing and said nothing to Petitioner that would reasonably have lead Petitioner to believe that she would get paid for her services.

[View full text]

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In the Matter of the Estate of Barbara D. Pease, 95 PR 1250 (10/04/95)

 

The son of the protected person petitioned for authority to transfer property. He asked the Court to empower him to transfer all the protected person’s property to himself and his two brothers without consideration, reserving to his mother only a life estate in her residence. Because the proposed gift was not in the protected person’s best interests, the petition was denied.

The Court may authorize gifts greater than 20% of the yearly income of the estate only if it is satisfied that the gift is in the best interests of the protected person. C.R.S. § 15-14-408(5). In applying a "best interests" analysis, the Court asks four questions: 1) Will making this gift improve the quality of the protected person’s life? 2) Will the making of the gift extend the duration of the protected person’s life? 3) How will the making of this gift contribute to the safety, security, comfort, and happiness of the protected person? 4) What does the Court know about the protected person’s prior patterns of giving?

No evidence was presented at the hearing to indicate that the proposed gift would improve the protected person’s quality of life, extend the duration of the protected person’s life, contribute to the protected person’s safety, security, comfort, or happiness, or that the protected person had established a pattern of giving prior to the onset of her disabilities. Contrariwise, the Court concluded that the proposed gift would imperil the protected person by reducing her to poverty.

[View full text]



In the Matter of the Estate of Clarcie Mocha, 94 PR 1166 (10/02/95)

 

Personal Representative moved for Final Settlement and Distribution. Two heirs to the estate filed Objections to the Motion. The issues before the Court are 1) whether the decedent’s brokerage account held in co-tenancy passes by right of survivorship or tenancy in common; and 2) whether Petitioner waived her ownership rights by placing the brokerage account proceeds into the estate account.

A review of the Colorado law on brokerage accounts leads the Court to find that the brokerage account passes by joint tenancy, and therefore Petitioner is entitled to 100% of the brokerage account proceeds. If a brokerage account is ordinary personal property, a joint tenancy in personal property is created if the instrument evidencing ownership so states. C.R.S. § 38-11-101. Further, if a brokerage account is also a multiple-party account, ownership passes to the remaining account owners upon the death of one of the owners, unless provided otherwise. Because the Objectors could not provide clear and convincing evidence of a different intention, the Court concludes that the brokerage account passed to Petitioner upon decedent’s death.

Petitioner did not waive her ownership rights to the brokerage account by placing the proceeds in the estate account. The Objectors must prove Petitioner knew she owned the proceeds when she placed them into the estate account. The evidence indicates that Petitioner made no statements regarding her knowledge of her rights.

In general, a personal representative is personally liable for loss of estate assets she mingles with her own funds. In this case, Petitioner mingled her own funds with estate assets. The estate suffered no harm. The Court approves the Petitioner’s plan of distribution of the estate.

[View full text]

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In the Matter of the Estate of Rose R. Dinkel, 93 PR 2032 (08/22/95)

 

The Estate objected to the Magistrate’s entry of an Order allowing Health Management Systems’ claim against the estate. The Magistrate determined that HMS was a known or reasonably ascertainable creditor and therefore, entitled to actual notice.

The Estate argued that the Magistrate’s Order was not final, but reviewable by the Court, that the Estate was denied due process of law by the Magistrate’s ruling on constitutional grounds, that the Magistrate lacked jurisdiction to consider constitutional issues, and that HMS is not entitled to due process because it is not a person.

The Court found that the Magistrate’s Order was final. It fully resolved the issue of the validity of HMS’s claim. Any subsequent ministerial proceedings do not effect the Order’s finality.

The Estate’s Motion was untimely filed. Further, Rule 60(b) applies to factual issues raised in a surprise manner, not legal issues. Legal issues arising from the facts are the litigant’s responsibility. The Magistrate’s jurisdiction was proper. C.R.S. § 15-12-803 requires constitutional analysis in determining what type of creditor HMS is and what type of notice is required.

The Court found that the issue of due process rights of government agencies argument was moot because the time to appeal has passed. Because the Magistrate properly exercised her power to interpret C.R.S. § 15-12-803 in light of constitutional restrictions, the Respondent’s motion was denied.

[View full text]

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In the Matter of the Estate of Donald L. Robinson, Jr., 94 PR 2106 (07/17/95)

 

Petitioner claims priority for appointment as personal representative of this decedent’s estate based on a common law marriage to the decedent. The decedent’s mother disputes the claim.

The requirements for determination of common law marriage are: 1) mutual consent or agreement of the parties to be husband and wife; and 2) mutual assumption of the marital relationship. Petitioner did not establish by a preponderance of the evidence that a common law marriage existed. Of significance to the Court was the lack of evidence of use of a common surname or accumulation of jointly-titled property, and lack of consistent public acknowledgment and reputation of the marriage. Testimony from different witnesses conflicted regarding how Petitioner and the decedent held themselves out to others, including friends, family, the community at large, and the Internal Revenue Service.

In addition, Petitioner and the decedent had expressed a desire or intent to marry in the future. The Court gives substantial weight to such evidence to disprove the existence of a common law marriage. Having considered all the evidence, the Court concluded that no common law marriage existed.

[View full text]

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In the matter of: LEVINE, ROSAMOND H (04PR1534)

Plaintiffs filed claims for legal malpractice against decedents’ estate planning attorneys in Denver District Court. District Court judge first assigned to the case denied motion to dismiss for lack of jurisdiction but successor District Court judge granted motion to dismiss for lack of jurisdiction and sent the case to Denver Probate Court. Denver Probate Court advised parties to seek relief on jurisdictional claims in Court of Appeals and granted motion to dismiss for failure to state a claim. Appeal as to jurisdiction followed.

Court of Appeals ruled that jurisdiction for legal malpractice claim is in District, not Probate Court.

[View full text] [Court of Appeals Opinion]

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In the Matter of the Estate of: Myers, Thorvald G. (04PR1450)

When may a Court justifiably disqualify an attorney for a Rule Violation or Professional Misconduct?

The Paralegal for an attorney unlawfully obtained a credit report of an opposing party. The paralegal shared the credit report with the client, but when the paralegal informed her supervising attorney of what she had uncovered, the attorney sealed the report and brought the matter to the attention of the Court. Based on the admission of counsel, the Court found that there had been abuse of the litigation process, disqualified the law firm in question, and imposed monetary sanctions. The disqualified firm appealed the Order to the Supreme Court of Colorado pursuant to C.A.R. 21. The Supreme Court found that the Probate Court’s decision was based on insufficient findings of fact and was therefore an abuse of discretion. The Supreme Court noted that a rule violation alone is insufficient to justify disqualification of an attorney and thus REMANDED the matter to the Probate Court for further findings of fact.

[Colorado Supreme Court Opinion]

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In the Matter of: Luebke, William (04PR1182)

Whether the Denver Probate Court has jurisdiction to adjudicate trusts administered in another state.

Court of Appeals affirmed the DPC’s dismissal of a trust action based on lack of subject matter jurisdiction. The Denver Probate Court appropriately exercised its discretion in dismissing a trust action where the trust was administered in a foreign jurisdiction. The Court of Appeals further held that a Rule 12 motion to dismiss is not waived where the non-movant refrained from objecting in the original forum where the matter was heard in a subsequent forum as a result of an unopposed motion to transfer to the second forum.

[Court of Appeals Opinion] [06SC358 Cert. Denied]

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In the Matter of Scott, William C. (00PR620)

Whether a party may appeal an order of the probate court prior to the resolution of all issues between parties.

The Supreme Court held that [1] when the probate court has entered orders fully determining the rights of the parties with respect to all claims raised in a proceeding, a final judgment exists [2] the unsupervised administration of an estate may involve multiple proceedings, that a petition initiates an independent proceeding and defines its scope, and that a single proceeding may dispose of multiple claims [3] if a party wishes to appeal an order of the probate court before the probate court has resolved every claim in the proceeding, a party may seek certification pursuant to CRCP 54(b).

[Court of Appeals] [Colorado Supreme Court]

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In the Matter of Hirsche, Charles E., Jr. (05PR655)

Whether testator had capacity to write a will. Whether fiduciary duties were owed to a contingent, non-vested beneficiary. Whether a trustee who engaged in conduct contrary to the terms of a trust in question may avoid such transaction in his capacity as a beneficiary.

Petitioner failed to satisfy his burden under the Cunningham Test in challenging testator’s capacity to write a will. Contingent, non-vested beneficiary was owed limited (or no) fiduciary duties from the institution serving as trustee of the primary beneficiary’s trust.

[Full text]

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In the Matter of: Perry, Mary (04PR1019)

Whether the Department of Health Care Policy and Financing must provide notice to a Medicaid recipient who automatically qualified for coverage that the state intends to recover capitation payments from the recipient’s estate at death.

Decedent was receiving Social Security benefits. Consequently, the Decedent automatically qualified for and was enrolled in a state Medicaid program. During her life, the Decedent incurred “capitation payment” charges from her participation in the Medicaid program. There is no dispute that the state was entitled to collect on these charges from the Decedent’s estate; however, the state provided no notice to the Decedent during her life that she was incurring charges that could be collected from her estate. The Denver Probate Court held that in order for the Department of Health Care Policy and Financing to collect from an estate in such circumstances, they must provide notice to the recipient of the benefits during her life.

[Full text]

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In the Matter of: Scott, William C. (05PR446)

Whether a party may appeal an Order of the probate court prior to the resolution of all issues between parties when the Order appealed pertains to a petition filed under a new case number.

The Court of Appeals extended the ruling in Scott 1 (05SC199) to situations where an appeal was taken from an order issued in a second case where the matter closely relates to issues outstanding in the first case. The Court of Appeals relied heavily on the fact that the Order issued in the second case had no preclusive effect over issues outstanding in the first case.

[Court of Appeals]

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In the Matter of Estate of Arnold E. Hedell, 03 PR 171 (06/07/2006)

The Denver Probate Court entered a surcharge against the trustee of an irrevocable trust in favor of the estate of the Protected Party. The surcharge was based on the trustee’s failure to pay income taxes on time for the trust, failure to properly file income taxes for the trust, and malfeasance in office due to unexplained losses.

[Order]


In the Matter of the Estate of Ryan Edward Bennett, 02 PR 1175 (07/25/2003)

Decedent was a protected person and the recipient of an annuity that was the result of a personal injury settlement related to the circumstances surrounding his birth. Decedent’s mother claimed that she was entitled to 100% of the beneficial interest of her son’s annuity.

The Denver Probate Court denied the mother’s assertion that she was entitled to 100% of the annuity and held that her claim was baseless, groundless, and frivolous. The personal-injury settlement agreement was not ambiguous and the language in the agreement stated that the annuity payments were to be paid to the decedent’s legal representative, devisee, heirs or estate. Both the father and mother signed the agreement and were bound by it. The Special Administrator confirmed that the argument lacked merit.

The Denver Probate Court found that the mother misled it in appointing the mother as a fiduciary. It also granted the father’s Motion for Attorney Fees pursuant to C.R.S. § 13-17-102. The mother was to pay half of the fee award personally and her counsel was to pay the other half personally.

The Court of Appeals affirmed the order. The Colorado Supreme Court and the U.S. Supreme Court denied certiorari.

[Order]


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In the Matter of the Estate of Ralph J. Schlender, 04 PR 595 (8/30/2005)

Whether the decedent had testamentary capacity to make and execute a will that disinherited one of his stepchildren. Whether the decedent’s will was a result of undue influence exerted upon him by one or more beneficiary.

The decedent executed his first will and directed that his estate be divided equally between his son and his two step-children, his stepson and the Petitioner. The decedent lived with his stepson. The Petitioner filed a petition for the appointment of a guardian and a conservator for the decedent. The Denver Probate Court appointed the son as conservator but the action cost $12,000 and angered the decedent. As a result, he executed a second will, excluding the Petitioner. The Decedent filed a petition with the Denver Probate Court under C.R.C.P. 27 to perpetuate his testimony concerning the second will. The decedent testified under oath as to the circumstances of his second will, his testamentary capacity, and the lack of undue influence in the making of the second will. The Petitioner’s counsel cross-examined the decedent during the proceeding.

The Denver Probate Court determined that the decedent had testamentary capacity to execute the second will and that there was no undue influence in the making of it. The Court of Appeals affirmed the judgment. The Colorado Supreme Court denied certiorari.

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In the Matter of Marion K. Hass Trust, 04 PR 325 (02/10/2005)

Whether the beneficiaries of a trust, dissatisfied with the Denver Probate Court's disbursement of monies in the trust to a law firm, could bring a 42 U.S.C. § 1983 federal action against the Denver Probate Court judge challenging various collateral orders but not the award of monies to the law firm.

The Tenth Circuit Court of Appeals affirmed the federal district court’s dismissal of the action against the Denver Probate Court judge for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine. The Tenth Circuit noted that the beneficiaries did not file an appeal with the Colorado Court of Appeals. Consequently, their right to appeal the collateral orders was inextricably intertwined with the Denver Probate Court’s final judgment and was therefore properly dismissed under the Rooker-Feldman doctrine.

(10th Circuit Case Number 06-1421, Opinion Issued 2/16/2007)

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In The Matter Of The Estate Of Marian P. Klarner, 04SC214
(Colo. 06/06/2005)

The trustees of a QTIP Trust wanted to prorate the payment of taxes according to the amount attributable to the trust in the decedent’s taxable estate. The trustees argued that Internal Revenue Code section 2207A controlled apportionment of the state estate taxes and the beneficiaries argued that section 15-12-916(2), C.R.S. controlled.

Issues: (1) whether the state estate taxes are properly apportioned against a QTIP Trust, and (2) whether the QTIP beneficiaries are entitled to attorney’s fees.

The Colorado Supreme Court held that Internal Revenue Code section 2207A controls the apportionment of both federal and state estate taxes. The court noted that the Colorado legislature intended Colorado estate tax law to be consistent with federal law and that the principles of preemption demand that federal law prevail, where the state statute conflicts with the federal statute. The court further held that the beneficiaries were not entitled to attorneys’ fees on either a prevailing party theory, or upon a conflict of interest/breach of trust theory.

[Read entire 04SC214] [Court of Appeals 02CA2077]

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In the Matter of the Estate of Edna R. Murphy, 05 PR 1191 (03/29/07)

Petition for Partition of Real Property. Petitioner owned property in joint tenancy with Edna Murphy (deceased) whom, prior to her death, conveyed the property to a third party. Petitioner claims Murphy did not have capacity to convey the property. In the alternative, Petitioner argues the conveyance severed the joint tenancy creating a tenancy in common. Petitioner requests that the Court determine her rights with respect to the property.

Pursuant to Article VI of the Colorado Constitution and articles 1 to 10 of Colo. Rev. Stat. Title 13, the Court held that it does not have subject matter jurisdiction. Under either of Petitioner’s theories, title to the property does not pass through the decedent’s estate, and thus, this is not a matter of probate. The probate code only applies where title to the property is fixed in the estate.

The Court noted that while it does have jurisdiction over partition of real property, it is strictly limited to property in connection with the settlement of an estate.

[Order]

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In Re the Estate of E. Keith Evarts, a/k/a, Keith Evarts, 05 CA 2319 (04/05/07)

Petition to Vacate an Order of Intestacy. Keith Evarts died in 2004 leaving a copy of a 1983 typed will, naming only two nieces as beneficiaries. The document was improperly executed. After Evarts died his personal representative petitioned the court to find that Evarts died intestate and to determine the heirs. One niece did not receive notice of that hearing. The trial court subsequently determined that Evarts died intestate. The nieces appealed claiming that Olson is an interested party and is entitled to notice. The personal representative argued that Olson is not entitled to notice because she is not a devisee under a valid will.

The Court of Appeals noted that under 15-11-503, C.R.S., a court may enter into probate a will that is flawed in execution to effectuate the intent of the decedent. The court therefore held that Olson is an interested person because she is a potential devisee and because she is a potential proponent of the 1983 will and may be able to prove its validity. Pursuant to 15-10-401, C.R.S. she is entitled to notice.

The court further held that the twelve month statute of limitations should not have tolled against Olson’s claim if she received notice.

[Read entire 05CA2319]

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In the Matter of the Estate of Dorothy Wait, 06 PR 1112 (04/11/07)

Stipulated Petition for Approval of Settlement Agreement. Dorothy Wait executed three wills prior to her death (2001 Will, 2002 Will, and 2003 Will). The 2002 Will named several heirs and three charities as devisees and the 2003 Will named a new charity as the sole devisee. After the 2003 Will was admitted to probate, the named alternate personal representative in the 2002 Will and some of Wait’s heirs objected to probate of the 2003 Will and appointment of the personal representative named in the 2003 Will. A hearing on the objections and the probate of the 2003 Will was set. All devisees under the 2002 Will received notice (except one due to an error in mailing). None of the 2002 Will Devisees filed an objection. None appeared at the hearing. At the hearing, the heirs and the devisee under the 2003 Will informed the Court that they had entered into a settlement agreement (“September Agreement”).

Issue: whether devisees under previously executed wills have standing to object to Court approval of the September Agreement.

The Court held that the parties named under the 2002 Will who received notice of the hearing on the probate of the 2003 will and failed to timely respond, object or appear lost their status as parties in interest and therefore, had no standing to object to the September Agreement. Conversely, the party who did not receive notice of the hearing had standing to object to the September Agreement, even though the party did receive some of the filings.

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In the matter of: J.C.T. 98PR163 (1/28/98)

In re J.C.T.,___ P.3d ___, 2007 WL 4225820 (Colo. 2007): The Colorado Supreme Court reversed the Court of Appeals, rejecting the notion that the probate court had engaged in de facto adoption proceedings over which it lacked jurisdiction by ordering the court-appointed guardian ad litem (“GAL”) to find a permanent guardian and to consider the potential for eventual adoption in evaluating the child’s best interests, and further rejecting the Court of Appeals’ opinion that the probate court’s appointment of itself as guardian and the GAL as guardian designee was improper because it could have caused the child to be a neglected or dependent child subject to the exclusive jurisdiction of the juvenile court.
The Colorado Supreme Court concluded that a de facto adoption proceeding could not have occurred because statutorily, a child’s availability for adoption requires parent or guardian consent, an affidavit or sworn testimony to the court that the child was abandoned for one year or longer, or a court order terminating the parent-child relationship, none of which had occurred in this matter.  Rather, the probate court had properly considered the child’s best interests, which included consideration of permanency and stability for the child.  Regarding the probate court’s appointment of itself as guardian and the GAL as guardian designee, the Court applied the rationale set forth in In re Estate of Morgan, 160 P.3d 356 (Colo. App. 2007) to conclude that a government entity (such as the probate court) is a qualified individual eligible to serve as guardian, and disagreed with the argument that because “guardian” is defined at C.R.S. § 15-14-102(4) to include a limited, emergency, and temporary substitute guardian, but not a guardian ad litem, the GAL was precluded from being appointed as guardian designee.  Finally, the Court upheld the probate court’s continuing jurisdiction following its self-appointment, noting that the law permits the probate court to request recommendations of the juvenile court pertaining to the guardianship, but did not require a transfer of jurisdiction, and that such appointment did not cause the child to be a neglected or dependent child subject to the juvenile court’s exclusive jurisdiction.

[98PR163 (1/28/98)] [05PR895 (6/30/05)] [05CA1065] [06SC780]

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In the Matter of the Estate of Margaret Rodda, 03PR415

Decedent left the residuary of her estate to Klein in the first two wills decedent executed.  In decedent’s third will, decedent only left Klein $500.00.  At trial, Klein alleged that decedent was delusional prior to executing the third will and requested to use a forensic psychologist to testify about decedent’s mental state.   The probate court determined that it was not necessary to use expert testimony to resolve the validity of the third will.  
The Court of Appeals found the Probate court did not abuse its discretion because the determination of the issue was answerable without expert testimony.  Determining the validity of the will was possible based on the evidence presented and without the use of expert testimony. Additionally, the expert’s impressions stemmed entirely from interviews and records that were available to the court. 

[04CA1410]

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In the Matter of Hulin Family Trust, 07PR1230

Petitioner attempted to establish a qualifying trust (“Hulin Trust”). After a 60-month “look back” period, the trust’s assets would no longer be considered available resources if an application for Medicaid benefits was filed. But Colorado Department of Health Care Policy and Financing (“CDHPF”) had interpreted that the language in similar qualifying trusts does not comport with statutory requirements to exempt the resources, if the individual later applies for Medicaid benefits. The petitioner then asked the court to reform the Hulin Trust to retroactively comport with the statutory requirements. 

The Court found that CDHPF must be given notice of the petitioner’s request because CDHPF is an interested person.  But because the petitioner was not requesting Medicaid benefits, the CDHPF lacked standing to challenge the petitioner’s request for reformation.  The court granted the petition for reformation because the intent of the parties at the time of the drafting of the instrument was to establish a qualifying trust. 

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In the Matter of the Estate of Faller (00PR1035)

The surviving spouse filed for an elective share trust (The Trust) and requested that the assets from her husband’s estate be distributed in a manner that would maintain the spouse’s eligibility for benefits under the Colorado Medicaid Program.  The Probate court granted the surviving spouse’s request.
15-14-412.6(2) C.R.S. 2001 limits the types of trusts used to establish or maintain Medicaid eligibility.  The Court of Appeals found that the Trust was not appropriate for maintaining Medicaid eligibility because the Trust’s structure did not dispose of the remainder of the Trust.  Additionally, 15-14-412.6(2) does not allow for elective-share trusts for the purpose of maintaining public assistance eligibility, including Medicaid. 

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In the Matter of the Estate of Efren Ernest Rodriquez (02PR747)
Hope Marquez v. Lopez

Marquez and decedent’s marriage dissolved in 1989 but the two lived together until mid-2000.  The same year Lopez and decedent began living together and stayed together until decedent’s death.   Decedent died intestate and both Marquez and Lopez asserted claims of common law marriage to decedent.   The Probate court, using a preponderance of the evidence standard, found Lopez was the common law wife of decedent.

The Court of Appeals found that the Probate court was correct in applying the preponderance of the evidence standard for the party asserting the marriage. Also, the Court of Appeals found that the character of the evidence necessary to establish a common law marriage must be clear, convincing and consistent. 

[03CA542]

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In the Matter of the Estate of Brigitte Manning

The court concluded that attorney's may not charge their "professional rate" when serving as a guardian or conservator. The court FINDS that a reasonable and necessary fee for the services performed in this case would be $40 to $85 per hour.

See Order

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