Disclaimer: This is general information, not legal advice. I am not a lawyer. If you need legal advice about a will contest in Colorado, consult a licensed Colorado attorney promptly.
Detailed Answer
When someone asks what evidence they need to show that a will is invalid because the testator lacked capacity or was subject to undue influence, courts look for proof on two different questions: (1) did the testator have the mental ability to make a will when they signed it, and (2) was the testator coerced or controlled so the will reflects another person’s wishes rather than the testator’s own?
Legal framework under Colorado law
Wills and will contests in Colorado are governed by the Colorado Revised Statutes and by the probate courts that interpret them. For text of the Colorado statutes on probate and wills, see the Colorado Revised Statutes (Title 15) at the Colorado General Assembly website: Colorado Revised Statutes (CRS) — Title 15 (Probate). The Colorado courts decide lack of capacity and undue influence based on the evidence presented in each case.
What the court looks for: capacity
To have testamentary capacity a person must, at the time of signing the will, generally understand:
- that they are making a will (the nature of the act);
- the nature and approximate extent of their property; and
- the natural objects of their bounty (who their heirs or close family are) and the distribution they are making.
Evidence to prove lack of capacity typically includes:
- Medical records and diagnoses showing dementia, stroke, delirium, severe mental illness, or other cognitive impairment near the signing date (hospital charts, psychiatrist/neurologist notes).
- Medication records showing drugs that can impair thinking (changes in prescriptions, sedatives, or high-dose opioids around signing).
- Contemporaneous observations from treating doctors, nurses, caregivers, or family members that describe confusion, memory loss, disorientation, or inability to communicate.
- Standardized cognitive test results (for example, Mini‑Mental State Examination or similar) taken near the time of signing.
- Evidence of fluctuating consciousness (e.g., episodes of delirium) around the execution date.
- Video or audio recordings or eyewitness testimony that show the testator did not understand what they were signing or could not answer basic questions about their property or family.
- Prior statements by the testator showing a lack of understanding or inconsistent expressions of intent about the will’s contents.
- Expert medical testimony tying the medical condition to incapacity at the execution date.
What the court looks for: undue influence
Undue influence occurs when someone exerts such pressure or control over the testator that the will reflects the influencer’s intent rather than the testator’s free will. Colorado courts consider the relationship and the circumstances surrounding the will’s creation.
Common types of evidence used to prove undue influence:
- Suspicious circumstances around the will’s drafting or signing: the influencer drafted the will, paid for the attorney, or arranged the meeting where the will was signed.
- Isolation or control of the testator: evidence the testator was cut off from family/friends, had limited contact, or lost independent decision-making because someone controlled visitors, phone access, or finances.
- Disproportionate benefit: the person alleged to have exerted influence receives an unexpected, substantial, or unnatural share compared to prior wills or to normal family expectations.
- Presence of the alleged influencer at signing or their involvement in procuring witnesses or the notary.
- Recent, unexplained changes in the will that favor the influencer immediately after the influencer gained access or power over the testator.
- Evidence of threats, coercion, or emotional manipulation—texts, emails, recorded calls, or witness testimony that show pressure or intimidation.
- Financial records showing transfers, unusual spending, or misuse of the testator’s funds in ways that indicate exploitation.
- Testimony from independent witnesses who saw the testator’s state or the influencer’s behavior.
- Expert testimony (psychological or geriatric) explaining why the testator was vulnerable and how certain tactics could overcome free will.
How courts weigh the evidence
Courts evaluate the totality of circumstances. A single piece of evidence rarely decides a case; judges weigh medical records, witness testimony, documentary records, and expert opinions together. Suspicious facts (for example, caregiver-controlled access plus dramatic changes in the will) can make the court scrutinize the will more closely.
Because probate contests have legal procedures and timing rules, judges also consider whether credible independent witnesses were present at signing and whether the will was executed according to statutory formalities in the Colorado statutes (see Title 15). Strict adherence to execution formalities (proper witnesses, notarization when required) helps validate a will but does not alone prevent a successful challenge if strong evidence of incapacity or coercion exists.
Practical steps to gather and preserve evidence in Colorado
- Preserve the original will and any copies. Notify the probate court and the personal representative if a probate case is open.
- Collect contemporaneous evidence: emails, text messages, letters, photos, voicemail, and video that show the testator’s condition or the influencer’s conduct.
- Obtain medical records and medication lists. Because medical records are protected, an attorney can subpoena records or request them with proper releases.
- Get signed, dated witness statements or affidavits from people who saw the testator’s condition, the will-signing event, or interactions with the alleged influencer.
- Preserve financial records (bank statements, transfers, checks) showing unusual transactions or gifts.
- Consider an expert assessment. A medical or forensic expert can evaluate records and testify about capacity or susceptibility to influence.
- Act quickly. Probate deadlines and the availability of witnesses or records can change rapidly.
What to expect in court and next steps
If you believe a will was signed without capacity or under undue influence, consult a Colorado probate attorney immediately. An attorney can help you:
- Review whether you have standing to challenge the will;
- Preserve evidence and obtain records through discovery or subpoenas;
- File the appropriate challenge in the probate court; and
- Arrange for experts and witnesses to testify where appropriate.
Because procedures and time limits vary depending on whether the will has been admitted to probate and whether a personal representative has been appointed, early legal advice matters. Colorado’s probate courts also maintain forms and guidance that may be helpful: Colorado Judicial Branch — Probate Forms and Information.
Helpful Hints
- Start preserving evidence now: save emails, texts, photos, and copies of financial statements immediately.
- Do not alter or destroy the original will or related documents. Tampering can hurt your case.
- Get witness statements while memories are fresh. Even short written affidavits from neighbors or caregivers help.
- Medical records are crucial. If you cannot get them voluntarily, an attorney can subpoena them.
- Look for patterns: sudden isolation, a new caretaker with close access, or abrupt large financial gifts are warning signs.
- Independent counsel for the testator and independent witnesses at signing strengthen a will’s defense against challenges.
- Time matters: probate steps and limitation periods can bar late challenges. Contact a probate attorney promptly.
- Ask whether you have standing before investing heavily in experts—only certain relatives or interested parties can contest a will.
For the statutory framework, begin with the Colorado Revised Statutes on probate (Title 15): https://leg.colorado.gov/content/colorado-revised-statutes-crs. For practical probate forms and court procedures, see the Colorado Judicial Branch probate pages: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=8.
If you want, provide a few non-identifying facts about the situation (who is the beneficiary, when the will was signed, whether the will has been submitted for probate) and I can outline likely next steps and documents you will want to gather before you meet an attorney.