In movies, there is often a dramatic reading of the will after a rich family member dies. This can inspire all sorts of treachery and plotting as the surviving heirs fight over the assets. In reality, the process of contesting a will is formal and technical.

To challenge a will, you must be considered an interested party under Colorado law. Once you have established standing, you will need to provide a legal basis (such as fraud or undue influence) for overturning the will. Our Colorado probate attorneys can help you through the process, offering advice and insight as we advocate for your rights.

Based in Colorado Springs, Ascent Legal Group offers experienced legal representation to clients who are dealing with probate matters. Whether you want to contest a will or need to defend against an illegitimate challenge to a will, our probate lawyers will help you achieve the best possible outcome. Reach out to our law firm today to schedule a free consultation with a member of our legal team.

What Does It Mean to Contest a Will?

A last will and testament is a legal document through which a person (known as a testator) can spell out their wishes for how their assets will be divided upon their death. After the testator dies, a personal representative (who is often named in the will) will file a petition with the local court to open probate. After the will is filed with the court, one or more people may decide to contest it.

Contesting a will is the legal term for formally challenging the validity of a last will and testament. A person may contest a will for a number of different reasons, such as:

• Lack of mental capacity: If you believe that the testator was not “of sound mind” when they signed a will, then you may decide to contest it. To be of sound mind, a testator must know what their assets are, who their family members are, how their will affects who will inherit from them, and that the will must represent their interests.
• Undue influence or duress: If you believe that the testator was pressured, manipulated, or threatened into making the will, that may be grounds to contest the will. A testator must sign a will voluntarily.
• Fraud: If a person did not sign or make a will under their own free will, or was somehow tricked into making or signing the will, you may contest the will.
• Improper execution: To be valid, a will must be in writing and signed by the testator, with two competent adult witnesses signing as well. If the will was not properly executed, that may be a basis for challenging it.
• Revocation: If a testator makes a more recent, valid will, then it will revoke any prior wills. If a prior will is admitted to probate, then it could be challenged.

For example, consider a situation where Mary moves in with one of her adult children, John, in the last year of her life. Before Mary moved in with John, her will provided that each of her 3 adult children would split any remaining assets equally. After the move, May’s will was changed so that John is the only heir. 

In this case, it may be possible that Mary decided on her own to change her will because she believed that John deserved to be rewarded for taking care of her. Alternatively, it is possible that John exerted undue influence on Mary. Depending on the facts of the case, this may be a situation where John’s 2 siblings should contest the will.

Challenging a will can be an emotionally draining, complicated process. However, it may be necessary to ensure that your loved one’s final wishes are carried out in the way that they wanted them to be. Our Colorado probate litigation attorneys can represent you in a will contest case, helping you understand your legal rights and options for resolving the case.

Contesting a Will in Colorado

As a general rule under Colorado law, a proceeding to admit a will or to contest a will must be commenced within three years after the decedent’s death. However, if the will has already been admitted to probate, or depending on other procedural circumstances, shorter deadlines or equitable defenses may apply. Thus, when it comes to will contests, it makes more sense to act sooner rather than later, because if you wait too long, the assets may be distributed and probate closed.

Under Colorado’s probate statutes governing wills (Title 15, Article 12 of the Colorado Revised Statutes), you must have standing (be an interested person) to challenge a will. Standing is a legal term that means that you have a personal, financial, or legal interest in the outcome of the case. In a will contest, this might mean that you would inherit if the will contest is successful.

Establishing Legal Standing

Generally, a person might have standing to contest a will in Colorado if they have some sort of relationship with the deceased person (decedent). This can include a number of different parties, such as:

• Family members who would inherit from the decedent if there was no will ( which is known as intestate succession). Also known as heirs-at-law, this group of people may include a spouse, children, grandchildren, siblings, and/or parents.
• Named beneficiaries of a prior will, particularly if the new version of the will leaves them with less to inherit.
• Beneficiaries of the current will who may have reason to believe that the will is invalid for some reason.
• Legal guardians or conservators who believe that the will was executed improperly or was otherwise invalid when it was signed.
• Creditors, if the probated will affects their ability to collect a valid debt.

Standing is critical when it comes to contesting a will. If you are hurt that a loved one excluded you from their will but don’t have legal standing to contest, then you cannot contest it. For example, if a friend did not name you in their will despite your close relationship, you probably will not have standing to contest if you were not named in a prior will. 

If you have established legal standing, then you can contest a will if you have a valid reason to do so. Most often, a court will overturn a will based on evidence of fraud or forgery, undue influence, lack of testamentary capacity, improper execution, or revocation. To challenge a will, you will need to have evidence of one or more of these grounds.

Filing A Petition Or Objection

There are two primary ways to contest a will. First, you can file a petition in the appropriate court to request a determination of the validity of the will itself. Second, you can file an objection within an existing probate proceeding where a will has been formally or informally probated.

Whichever method you choose, you will have to provide both evidence of your legal standing and the grounds for the will contest. Again, these grounds cannot simply be that your feelings are hurt. You will have to provide some kind of proof that the will itself is invalid.

Notice To Parties

Once a will contest is filed in Colorado probate court, the petitioner must formally notify all “interested parties.” This includes anyone named in the will, heirs who would inherit under state law if the will were invalid, and the personal representative handling the estate. The notice ensures that everyone with a potential claim has a fair opportunity to respond and participate in the proceedings. It will outline the nature of the contest and provide information about the court, deadlines, and next steps. Proper notice is critical. If someone is not notified, the court could later invalidate parts of the case or require it to be reopened, delaying the probate process.

Pre-Trial

Once the petition or objection has been filed, you will go through the pre-trial process. This will usually include exchanging information through the discovery process and attending hearings. You may also choose to engage in alternative dispute resolution (such as mediation). 

Trial

If your case isn’t resolved in pre-trial, it may progress to trial. Unlike a jury trial in most civil cases, will contests are typically decided by a judge who reviews the evidence and hears witness testimony. Both sides may present medical records, expert evaluations, and testimony from people who knew the decedent to prove or disprove claims such as undue influence or lack of capacity. The judge’s role is to determine whether the will was validly executed and truly reflects the decedent’s intent. The outcome can range from upholding the will as written to invalidating specific provisions, or even setting the entire will aside.

Appeal

After the trial court issues its ruling, any party who disagrees with the decision may appeal to the Colorado Court of Appeals. An appeal does not re-try the case or introduce new evidence; instead, it focuses on whether the probate judge made legal or procedural errors during the trial. The appellate court reviews the record and written briefs from both sides before issuing a decision, which may affirm, reverse, or remand the case for further proceedings. Appeals can extend the probate process significantly, sometimes by a year or more, but they provide an important safeguard to ensure that the court’s decision follows Colorado law and due process.

The Importance Of Speaking With A Probate Attorney

Contesting a will in Colorado can be a complex, highly emotional process. Because the law in this area is complex and fact-specific, the mere presence of a ground (such as undue influence) does not guarantee success; you must present sufficient evidence and procedural steps must be followed.

Additionally, will contests typically involve family members. The decision to contest a will can create a rift within your family. That is why it is always advisable to consult with a Colorado probate attorney to talk through your options and likely outcomes before you make a decision about how to proceed.

Consider a situation where your uncle died without a spouse or children. 5 years before his death, he had a falling out with a sibling and decided to change his will to disinherit his nieces and nephews from that side of the family. You knew that he had gone to see a lawyer about changing his will, but the will that was submitted to probate is an old version that includes all of your cousins. 

If your cousins were disinherited, you and your own sibling would split all of his assets 50-50. Under the will submitted for probate by your aunt, you will split the estate 5 ways. This means that you will get 20% of the assets instead of 50%.

In this case, you might decide that it isn’t worth the fight. You might believe that your uncle wasn’t justified in cutting your cousins out of his will anyway, and you’d rather preserve family peace. Alternatively, you may decide that your extended family is acting fraudulently and that the correct, updated will should be probated.

Here, you would have standing to contest the will. If you decide to challenge it, you will need proof that your uncle did change his will. This might come from the updated instrument and/or through testimony from the attorney who made the will for your uncle. 

In this type of case, your Colorado probate lawyer can help you weigh the pros and cons of contesting the will, including the emotional and financial costs, the time limits for filing a petition, and any available alternatives. They can also help you create a plan based on your goals for resolving the matter.

Reach Out Today for a Free Consultation with a Colorado Probate Attorney 

When a loved one dies, there are a lot of heavy emotions. When the will is discovered, you and your family may be surprised to find out what it does (and does not) include. If you believe that your loved one’s will is invalid, you may be able to contest it with the help of a skilled Colorado estate litigator.

At Ascent Legal Group, we offer skilled legal representation to individuals and families as they navigate the estate and probate process. We can advocate for you in challenging a will or help you defend against a will contest. To learn more or to schedule a free consultation with a Colorado estate litigation attorney, give us a call at 719-256-0067 or fill out our online contact form.