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Under a proper formulation of the harmless error analysis, once a court determines a decedent has signed or acknowledged a document as a will, the issue becomes whether the proponent can establish by clear and convincing evidence the decedent intended the document to be a will. This proof may take the form of extrinsic evidence, such as decedent's statements to others about the letter. Colo. Rev. Stat. § 15-11-502(3), which provides that intent that the document constitutes the testator's will can be established by extrinsic evidence. The language of the letter is also relevant evidence, including, for example, whether the letter disposes of all decedent's property and whether the letter identifies a beneficiary.
The proponent and decedent were domestic partners for twenty years until decedent's death. The decedent gave the proponent a birthday card containing a typed letter decedent had signed. The letter expressed the decedent's wish that if anything should ever happen to him, everything he owned should go to proponent. The letter also stated that proponent, their pets, and an aunt were his only family. Decedent told proponent and the friends the letter represented his wishes. The proponent filed a petition to have the letter admitted to probate as decedent's will. The mother of the decedent's three nephews who would be decedent's heirs if he died intestate, objected to the petition. The trial court ruled the letter was not a will because it did not meet the requirements of § 15-11-503(2), C.R.S. 2006, and therefore the nephews would take decedent's estate by intestate succession. The proponent appealed, arguing that the trial court erred in concluding that the decedent did not intend the letter to be his will under § 15-11-503.
Did the trial court err in its interpretation of § 15-11-503, which led to its conclusion that the decedent did not intend the letter as his will?
The court found that the decedent's letter did not satisfy the formal requirements of a will pursuant to § 15-11-502(1) and that it was not a holographic will pursuant to § 15-11-502(2). The court noted that two of the formal requirements of § 15-11-102 were met because the letter was in writing and signed by the decedent. However, the letter was not signed by at least two witnesses who had witnessed either decedent's signing of the letter or decedent's acknowledgment of the signature or of the document as a will. Thus, the letter was not a formal will. The letter was also not a holographic will. Although it was signed by decedent, the material portions of the letter were typed, and, therefore, they were not in decedent's handwriting. Thus, the court held that it was appropriate to determine whether the letter was a writing intended as a will under § 15-11-503. The court averred that the trial court erroneously interpreted § 15-11-503(2) by holding decedent had to sign and acknowledge the letter as a will, even though decedent "stated his intent" in the letter. According to the court, the term "or" in the phrase "signed or acknowledged" in § 15-11-503(2) was presumed to be used in the disjunctive sense. There was no indication the state legislature intended a document to be both signed and acknowledged to satisfy § 15-11-503(2). The trial court's interpretation added a restriction not present in the statute. Because this legal error affected the trial court's decision, the order must be reversed and the case remanded for a new hearing.