Colorado & Testamentary Capacity

In re Estate of Romero, a Colorado appellate court case decided on June 30, 2005, involves an admittedly schizophrenic man who was under legal supervision at the time he executed his will.  The court decided he had testamentary even though he may have lacked contractual capacity.

Here is an excerpt from the court’s opinion:

There is scant Colorado case law detailing what specific knowledge is required for a testator to be deemed to know the extent of his or her property. However, the cases which touch upon this issue * * * indicate that it is sufficient that a testator comprehend the “kind and character of his [or her] property” or understand, generally, the nature and extent of the property to be bequeathed. Cunningham, supra, 127 Colo. at 300, 255 P.2d at 981; * * *

In other words, “A perfect memory is not an element of testamentary capacity. A testator may forget the existence of part of his estate . . . and yet make a valid will.” 1 Page on Wills § 12.22 (rev. 2003).

Special thanks to Andrew Oh-Willeke, Associate Professor of Estate Planning at the College for Financial Planning in Greenwood Village, Colorado for suggesting that I report this case.