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In re Estate of Everhart.

2021 COA 63. No. 19CA2081.  Informal Probate—Formal Probate—Motion to Dismiss—CRCP 12(b)(5)—Testamentary Capacity—Undue Influence.

May 6, 2021


Decedent’s will devised her estate to her three brothers and two nieces and a nephew. Brother Christopher moved for informal probate of the will and appointment as the personal representative. The other two brothers (Objectors) filed a petition objecting to informal probate and requesting formal probate proceedings. They alleged that the will was invalid because decedent lacked testamentary capacity and Christopher had exerted undue influence over her. Christopher answered the petition, and a niece and nephew moved to dismiss Objector’s petition under CRCP 12(b)(5). The district court granted the motion. Objectors moved for reconsideration, which the court denied.

On appeal, Objectors argued that the court erred by applying Rule 12(b)(5) to a petition objecting to informal probate. They maintained that a petition to commence formal testacy proceedings is not subject to dismissal under Rule 12(b)(5) because CRS § 15-12-403(1)(a) requires the court to “fix a time and place of hearing” on every petition. However, this direction does not mean that a party is entitled to a hearing in every case, and CRS § 15-12-403 does not address motions to dismiss. Further, the probate rules specifically contemplate motions practice, and allowing dismissal of a facially deficient pleading advances the probate code’s purpose. Accordingly, a petition objecting to informal probate and commencing formal probate proceedings is subject to dismissal under Rule 12(b)(5).

Objectors argued in the alternative that even if Rule 12(b)(5) applies, the court erred by concluding that the petition failed to state a plausible claim for relief. Here, Objectors did not allege that Christopher was actively involved with the preparation or execution of decedent’s will, and they failed to allege that he deprived decedent of her free choice.

Objectors also challenged dismissal of their claim that decedent lacked testamentary capacity. However, Objectors’ allegations were insufficient to show that decedent lacked capacity to make a will.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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