Harmless Error In Colorado Probate Proceedings

Colorado adopted the harmless error rule into its Probate Code in 1994. Since then, some cases have covered state court’s application of this statute, defining what makes an error “harmless.”

Harmless Error in Colorado Probate Proceedings

The 1990 revision of the Uniform Probate Code introduced Section 2-503, a harmless error provision. The harmless error rule allows judges to excuse a will’s noncompliance with Wills Act formalities as long as there is clear and convincing evidence that the testator intended the document to act as their will. In comparison, the substantial compliance doctrine considers whether an instrument sufficiently meets the purpose of legislative requirements. Both doctrines allow courts to remedy mistakes in a will’s attestation, signature, or alteration. For instance, courts can correct signatures, improper codicils, or grammatical errors. Despite the Uniform Probate Code adopting section 2-503 in 1991, only a few states have adopted similar provisions.

Colorado adopted a harmless error rule statute in 1994. Section 15-11-303 of the Colorado Revised Statutes states, in part:

(1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:

(a) The decedent’s will;

(b) A partial or complete revocation of the will;

(c) An addition to or an alteration of the will; or

(d) A partial or complete revival of the decedent’s formerly revoked

     will or a formerly revoked portion of the will.

(2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent’s spouse.

Unlike the UPC’s harmless error doctrine, the Colorado provision requires the testator’s signature, although it creates two exceptions: if two testators sign each other’s will (such as swapped identical wills in a mutual execution ceremony) and if the testator acknowledged but did not sign the will (as in the case of In Re Estate of Wiltfong, discussed below).

When Is an Error More Than Harmless?

The first Colorado case concerning harmless error was In Re Estate of Sky Dancer, 13 P.3d 1231 (Colo. Ct. App. 2000). Sky Dancer died in 1997 of gunshot wounds, and her boyfriend, Lawrence Barnes, put forward an unsigned handwritten document titled “Last Will and Testament of Sky Dancer” for probate. The purported instrument was incomplete but accompanied by two notarized, signed, and witnessed affidavits. Sky’s mother challenged the will for improper execution.

The Court of Appeals considered the purpose of the harmless error rule: to probate wills with minor deviations from statutory formalities. In Sky’s case, there were too many deviations to suggest that the document in question expressed her testamentary intent. It was neither signed nor written by her, and the affidavits she did sign made no mention of testamentary dispositions. “Harmless” errors are technical drafting mistakes that frustrate the testator’s intent, not those that bring the veracity of the entire will into question.

Moreover, the Court took notice of the fact that Barnes, who was named as Sky’s sole heir in the “will,” was being investigated for her murder at the time of probate proceedings. The Court decided that there was not enough clear and convincing evidence to suggest that Sky died testate. It declined to probate the “will,” citing concerns over fraud.

What Makes an Error Harmless?

Six years later, the Court compared In Re Estate of Sky Dancer with a very different set of facts. In In re Estate of Wiltfong, 148 P.3d 465, 469–70 (Colo. App. 2006), Ronald Wiltfong and Randall Rex were domestic partners for over 20 years. A year prior to his death, the couple celebrated Rex’s birthday with two friends. Wiltfong gave Rex a birthday card with a typed, signed note saying that if anything were to happen to him, he would wish that everything he owned go to Rex. The letter also denounced Wiltfong’s family. Wiltfong told Rex and their two guests that the letter expressed his last wishes.

Rex filed a petition to have the letter admitted to probate as Wiltfong’s will. Wiltfong’s mother objected to the petition. The trial court held that the letter did not meet all of Colorado’s statutory requirements, thereby leaving Wiltfong intestate. The letter was in writing and signed by the decedent, but not signed by at least two witnesses. Wiltfong also did not explicitly acknowledge the letter as his will.

The Court of Appeal determined the scope of the harmless error provision. The Court, citing the Restatement (Third) of Property: Wills & Other Donative Transfers, determined that defects are harmless in light of “statutory purposes, not in light of the satisfaction of each statutory formality viewed in isolation.” The issue was whether Wiltfong intended his letter to act as his will. The Court held that the trial court erred in interpreting Section 15-11-503(2) of the statute by requiring the decedent to have signed and acknowledged the letter as his will. The section clearly states “signed or acknowledged.”

Unlike Sky Dancer, the circumstances of the will did not raise any concern over fraud or duress, the letter in question was signed and written by the decedent with corroborating witness testimony. The letter met almost all statutory formalities required to constitute a will, and the mistakes were considered harmless. The Court reversed the trial court’s order and remanded the case for further proceedings.

Harmless Error in Partial Revocations

In In Re Estate of Schumacher, 253 P.3d 1280, the cousin of the testator, Maria Caldwell, filed a petition challenging the validity of cross-outs on David Schumacher’s holographic will. David had crossed out Maria’s and another of his three cousins’ names from his list of beneficiaries. Following a Probate Court judgment that gave testamentary effect to the cross-outs, Maria appealed. The Colorado Court of Appeals upheld the judgment, holding that there was sufficient evidence to establish that David had made the cross-outs on the holographic will with the intent to partially revoke the dispositions of his property by striking Maria and her cousin from the document.

David’s attorney, Michael Gilbert, testified that David had visited him, showed him the cross-outs on a copy of the holographic will, and clearly articulated his desire to give his property to only one of his three cousins. David also instructed that, save for those deletions, he wanted Gilbert to prepare a will containing the same dispositive provisions as the original. As established in Wiltfong, extrinsic evidence is admissible to establish the testator’s intent. Gilbert’s testimony alongside David’s possession of the holographic will at the time of his death supported the partial revocation.

Maria argued that the lack of signature next to the cross-outs demonstrated that David did not intend the partial revocation to be final. Instead, she contended that the cross-outs were an indication for Gilbert to prepare a subsequent will to replace rather than supplement David’s previous will. The Court disagreed, deciding that David’s cross-outs indicated his intent to comply with the Code’s revocation provision. The Court found that Gilbert’s testimony provided clear and convincing evidence of this fact.

Secondly, Maria argued that, because there were no signatures next to the cross-outs, the will failed to comply with statutory formalities. The Court disagreed. Neither the execution formalities nor the harmless error provisions in the Code require a signature by a cross-out in order to give effect to a partial revocation. Section 15-11-503 requires that a document be acknowledged or signed by the testator, but not that a revocation have an additional acknowledgment or signature. Although the Court did not need to rely on the harmless error doctrine to validate the cross-outs, it provided an extra fail-safe to probate David’s will.


Each of these three decisions provide helpful insights into how Colorado courts may apply the harmless error rule. Not all mistakes are harmless, as there must be at least some compliance with the statutory provisions laid out in Section 15-11-103. The court will always consider extrinsic evidence (including the possibility of fraud) and will use this information to reject suspicious purported instruments whose veracity can not be established. Furthermore, this extrinsic evidence can also support arguments that the testator acknowledged their document as their will. The court only needs the acknowledgment or signature of the testator, not both. Finally, the harmless error rule does not require the testator additionally sign or acknowledge their revocations. Pursuant to the Code, revoking a will has a much lower threshold than creating or modifying one. Codicils must be signed, dated, and witnessed compliant with the same formal requirements as the original Will. Ultimately, these cases all demonstrate that Colorado courts will not hesitate to use Section 15-11-03 as extra protection for ambiguities in will executions or revocations.

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