In re Estate of Davies.

2022 COA 90. No. 21CA0295. Wills—Colorado Uniform Guardianship and Protective Proceedings Act—Conservator—Property of Protected Person—Required Court Approval.

August 4, 2022

Wong, an estate planning attorney, was appointed as conservator for Davies. At Davies’s request, Wong prepared a will for Davies that left his estate to his friends and caregivers Ryno and DeHerrera. Davies signed the will in the presence of a notary public and two witnesses. After Davies died, Wong applied for informal probate of the will and appointment as personal representative of Davies’s estate. The district court granted the application. Scarpella, Davies’s cousin, petitioned to set aside informal probate and for adjudication of intestacy, alleging that Davies’s will had been procured by undue influence. Scarpella moved for summary judgment on the ground that Davies’s will was invalid because Wong prepared the will without obtaining required court approval under CRS § 15-14-411(1)(g). The court granted summary judgment and removed Wong as personal representative. Scarpella then filed a motion for surcharge against Wong, arguing that Wong breached his fiduciary duties to Davies by making the will without court approval. Before the motion was resolved, the parties filed a stipulation asking for certification of the summary judgment order as final pursuant to CRCP 54(b) and a stay of the surcharge action pending appeal, both of which the court granted.

On appeal, Wong, Ryno, and DeHerrera argued that the district court erred by invalidating Davies’s will. CRS § 15-14-411(1)(g) states that a conservator may make a protected person’s will only after receiving court approval and giving notice to interested persons. Here, however, Wong merely drafted the will; Davies himself executed the will in compliance with CRS § 15-11-502. Therefore, CRS § 15-14-411(1)(g) did not apply and the district court erred by invalidating the will.

The judgment was reversed and the case was remanded for further proceedings.