In an effort to provide a better understanding for what testamentary capacity expert psychologists look for when forming opinions about whether the person had testamentary capacity in the execution of a will, trust, beneficiary designation, or other testamentary contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Sixth up, Colorado.

C.R.S. § 15-11-501

An individual eighteen or more years of age who is of sound mind may make a will.

Colorado Jury Instruction 34:11 Testamentary Capacity and Sound Mind – Defined

A will that was signed when the person making the will did not have testamentary capacity is not valid and may not be admitted to probate. The testator did not have testamentary capacity if they were not of sound mind when the will was signed.

A person is not of sound mind if, when signing a will, they were suffering from an insane delusion that affected or influenced their decisions regarding property included in the will or they did not understand all of the following:

1. That they were making a will;

2. The nature and extent of the property they owned;

3. How that property was to be distributed under the will;

4. That the will was to distribute the property as they wished; and

5. Those persons who would normally receive their property.

Colorado Jury Instruction 34:12 Insane Delusion – Defined

An insane delusion is a persistent belief, resulting from illness or disorder, in the existence or non-existence of something that is contrary to all evidence.

Cunningham v. Stender 255 P.2d 997 [Colo. 1953]

To be of sound mind, the testator must:

1. Understand the nature of their act in making a will;

2. Know the extent of their property;

3. Understand the proposed testamentary disposition;

4. Know the natural objects of their bounty; and

5. Understand that the will represents their wishes.

Breeden v. Stone 992 P.2nd 1167 [Colo. 2000]

In addition to examining a testator’s soundness of mind under the Cunningham criteria, it is appropriate to, at the same time, examine whether or not a defendant possesses an insane delusion, which is defined as follows:

1. The testator has a persistent belief “which has no existence in fact and which is adhered to against all evidence;” and

2. This persistent belief must materially affect the dispositions in the estate plan.

A person may be operating under an insane delusion and still have testamentary capacity as long as the insane delusion does not materially affect the proposed distribution of property in the will and they meet the Cunningham criteria for testamentary capacity.

In re Estate of Romero 126 P.3rd 228 at 233 (Colo.App. 2005)

The Court held in this decision that the appointment of a conservator or the entry of another protective order is not a determination of the testamentary incapacity of the protected person, and that the fact that a person has been rated as incompetent by a third party nor the fact that a guardian has been appointed for the person shall be construed as a legal adjudication of insanity or mental incompetency. Thus, Colorado statutes explicitly state that the findings that warrant appointment of a guardian or conservator do not equate to a determination of testamentary incapacity. (Citing In re Estate of Gallavan, 89 P.3rd at 523)

C.R.S. § 15-14-409(4)

The appointment of a conservator or the entry of another protective order is not a determination of incapacity of the protected person.

Learn more

50 State Testamentary Capacity Project: Colorado Testamentary Capacity Expert Definitions