Colo. Rev. Stat. § 15-11-504

Current through Chapter 519 of the 2024 Legislative Session and Chapter 2 of the 2024 First Extraordinary Session

Section 15-11-504 - Self-proved will

(1) A will that is executed with attesting witnesses may be simultaneously executed, attested, and made self-proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:

I, _______________, the testator, sign my name to this instrument this ____ day of _______, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.

____________________________________

Testator

We, _______________, _______________ the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), and that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the conscious presence of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

____________________________________

Witness

____________________________________

Witness

THE STATE OF __________________

COUNTY OF _____________________

Subscribed, sworn to and acknowledged before me by _______________, the testator, and subscribed and sworn to before me by _______________ and _______________, witnesses, this _____ day of _______, ____.

(SEAL)

(SIGNED)____________________________________

____________________________________

(Official capacity of officer)

(2) A will that is executed with attesting witnesses may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form:

THE STATE OF __________________

COUNTY OF _____________________

We, _____________, ____________, and _____________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her]), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the conscious presence of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.

____________________________________

Testator

____________________________________

Witness

____________________________________

Witness

Subscribed, sworn to, and acknowledged before me by ___________________, the testator, and subscribed and sworn to before me by ___________________ and ___________________, witnesses, this ___________________ day of ___________________, ___________________.

(SEAL)

(SIGNED)____________________________________

____________________________________

(Official capacity of officer)

(3) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will if necessary to prove the will's due execution.

C.R.S. § 15-11-504

L. 94: Entire part R&RE, p. 998, § 3, effective 7/1/1995. L. 2001: (2) amended, p. 887, § 3, effective June 1. L. 2009: (1) and (2) amended, (HB 09 -1287), ch. 310, p. 1683, § 13, effective 7/1/2010.

This section is similar to former § 15-11-504 as it existed prior to 1995.

COMMENT

A self-proved will may be admitted to probate as provided in Sections 3-303, 3-405, and 3-406 without the testimony of any attesting witness, but otherwise it is treated no differently from a will not self proved. Thus, a self-proved will may be contested (except in regard to questions of proper execution), revoked, or amended by a codicil in exactly the same fashion as a will not self proved. The procedural advantage of a self-proved will is limited to formal testacy proceedings because Section 3-303, which deals with informal probate, dispenses with the necessity of testimony of witnesses even though the instrument is not self proved under this section.

Subsection (c) was added in 1990 to counteract an unfortunate judicial interpretation of similar self-proving will provisions in a few states, under which a signature on the self-proving affidavit was held not to constitute a signature on the will, resulting in invalidity of the will in cases in which the testator or witnesses got confused and only signed on the self-proving affidavit. See Mann, Self-proving Affidavits and Formalism in Wills Adjudication, 63 Wash. U. L.Q. 39 (1985); Estate of Ricketts, 773 P.2d 93 (Wash.Ct.App. 1989).

2008 Revision. Section 2-502(a) was amended in 2008 to add an optional method of execution by having a will notarized rather than witnessed by two attesting witnesses. The amendment to Section 2-502 necessitated amending this section so that it only applies to a will that is executed with attesting witnesses.

Historical Note. This Comment was revised in 2008.

For provisions relating to the time of taking effect or the provisions for transition of this code, see § 15-17-101 .