Selected Case Opinions

Attorney Fees

Bennett, 02 PR 1175 (07/25/2003)
Caldwell, 06PR844 (09/13/2006)
Fennell, 96 PR 110 (10/29/99) [99CA1555]
Fennell, 96 PR 110 (09/29/99)
Goldman, 95 PR 1771 (06/05/98)
Hutman, 96PR1252 (02/17/99)
Klarner, 04SC214 (Colo. 06/06/2005)
Laundry - 97PR1719 (11/20/03)
Morse, 97 CV 4213 (01/21/98) [98CA684]

Attorney Misconduct

Meyers, 04PR1450, (10/11/04) [05SA231]

 

---

In the Matter of the Estate of Karol Lee Griffin, 04PR249

This Order concerns a Petition for Allowance of Claim by Claimant which was filed by Sears Roebuck & Co. on April 4, 2005. The Decedent died on February 5, 2004 and the Personal Representative filed a Notice to Creditors by Publication which was published appropriately and indicated that the claims period expired on July 5, 2004. Sears filed a claim against the estate on November 17, 2004 in the amount of $11, 589.79 and the Personal Representative filed a Notice of Disallowance of Claim stating that their claim was not timely filed.

The Court relied on Tulsa Professional Collection Services Inc. v. Pope, 485 U.S. 478 (1988) and Estate of Russo v. Sunrise Healthcare Corp., 994 P.2d 491 (Colo. App. 1999) as well as C.R.S. § 15-12-803(1)(a)(III) in determining that when a creditor in a probate proceeding is either known to, or reasonably ascertainable by, the personal representative, the creditor is entitled to actual notice of a pending proceeding which may adversely affect the creditor and it is part of the personal representative’s responsibility to make a reasonably diligent effort to identify potential creditors. When the creditor of an estate whose claim was known or reasonably ascertainable to the personal representative does not receive actual notice, the creditor is subject to a general one-year limitation for filing its claim against the estate.

Accordingly, because in this matter, Sears was a creditor whose identity could have been reasonably ascertained by the personal representative by simply opening the decedent’s mail for a reasonable period after death and the personal representative failed to take reasonable steps to ascertain creditors and thus failed to provide Sears with actual notice, Sears’ claim was entitled to the one-year limitation for filing its claim and thus, it’s claim was timely filed.

[View full text]

[Return to top]

________________________________________________________________________

In the Matter of the Estate of Michael Paul Tassian, 04PR340

This Order regarded the Motion for Summary Judgment filed by the Defendant in this matter. The decedent was survived by a wife and three children. His Will left all tangible personal property and the residuary estate to his wife and she was nominated and appointed as personal representative. On 5/25, 1973, the decedent executed a Quit Claim Deed to real property to his ex-wife as Trustees of a Family Trust. On October 12, 1981, a Quit Claim Deed was executed and delivered from the decedent’s ex-wife to the decedent as part of a divorce decree. On July 5, 1989, a Quit claim deed was executed by the decedent and his subsequent wife and no grantee was named in this deed. The Plaintiffs, decedent’s three children asserted an ownership interest in the real property asserting that they were the beneficiaries of the Family Trust. The personal representative and the Estate objected.

After elucidating the applicable standards for the circumstances in which summary judgment is appropriate as well as providing background regarding constitutional trusts, the Court found that there were no named or identifiable beneficiaries of the Trust and held that a trust is not created or will not continue unless the terms of the trust provide a beneficiary who is ascertainable at the time or who may later become ascertainable within the terms of the rule against perpetuities. The Court further held that the Trust fails to state essential terms clear enough for any court to enforce equitable duties. Thus, the Trust fails on its face to create a valid, legally binding trust. As a result, the subsequent conveyances of the property to the trust were invalid as a matter of law and the decedent retained complete title to the property. Furthermore, the 1989 quit claim deed had no legal effect since decedent’s subsequent wife could never have been a grantor of the property because she was never on the title and the deed contained no grantee. Thus, the real property was part of the decedent’s estate and the plaintiff’s have no ownership interest in it. Accordingly, the Court granted Defendant’s Motion for Summary Judgment since there is no genuine issue of material fact.

[View full text]

_________________________________________________________________________

In the Matter of the Estate of Jean F. Tompkins, 04PR758

The Personal Representative filed a Petition for Construction of Will and Codicil. The decedent left a Will dated July 9, 1984, which left ¼ of her residuary estate to a nephew, and if he predeceased her, then it would go to her other nieces and nephew. The decedent then left a holographic codicil dated 12/10/98 in which she deleted her nephew from her Will. Both the Will and codicil were admitted to formal probate without objection from any party and the decedent’s sole heir was her sister.
The decedent’s sister argued that because the decedent deleted her nephew from her Will, the ¼ share of the residuary estate passes by intestacy and thus, she would take the share. However, the other nieces and nephews mentioned in the Will argued that they were entitled to the ¼ share of the residuary estate.

Issue: Whether within the language of the Will itself, the decedent expressed any intent as to the disposition of this ¼ share in lieu of the nephew that she wiped out of her Will.

Under C.R.S. § 15-10-102(2)(b), the Court concluded that the decedent did have an intent regarding the ¼ share of the residuary estate. The Court was also guided by C.R.S. §15-11-604(2) which puts forth the principal that there is a common law preference for construction of a Will or a part of a Will that avoids intestacy. The Court further relied on the rule of construction that there is a presumption that the testator intended every word, clause or provision in his or her Will to be operative and effective, to have meaning and purpose, and not to be meaningless or superfluous. 96 C.J.S. Wills § 859 (2002).

Accordingly, the Court held that the ¼ share of the residuary estate passed to the decedent’s remaining nieces and nephews, the contingent devisees.

[View full text] [Additional]

[Return to top]
_________________________________________________________________________

In the Matter of the Estate of Zachary John Wood, 04PR1651

This Order concerns a Petition for Approval of Proposed Settlement which was filed on behalf of the minor’s parents by counsel for the insurance company that was making the settlement offer but that did not represent the minor or his parents who were unrepresented.

The Court held that counsel for an insurance company involved in a personal injury settlement case cannot also represent the minor/incapacitated person, even in a limited capacity, because it is a clear conflict of interest. Moreover, this behavior violates Rule 1.7 of the Colorado Rules of Professional Conduct even where counsel for the insurance company disclaims any representative capacity as regards the plaintiff or the representative. Accordingly, the Court appointed a guardian ad litem to protect the interests of the minor.

[View full text]

_________________________________________________________________________

In the Matter of the Martha R. Gray Testamentary Trust, 00PR1752

Motion for Summary Judgment. In her will, Decedent provided a trust for the benefit of her grandchildren. The grandchildren’s father and two uncles were named as trustees of the trust. The two uncles delegated the management of the trust to the grandchildren’s father, who later dissipated the trust. Grandchildren filed a claim against their uncles for breach of trust. Court held that whether the delegation was proper and whether the applicable statute of limitations barred the claim were issues of fact. Additionally, the Court held that the Pro Rata Liability statute (CRS §13-21-111.5(1)) will apply in this alleged breach of fiduciary duty case.

[View full text]

_________________________________________________________________________

In the Matter In the Matter of the Estate of Lettie Milstein 1996-PR-640

This order concerns a son trying to make a “special appearance” on behalf of the Respondent in this case through his attorney, for a specific motion. The Respondent did not consent to this “special appearance” or the representation that the son was acting on her behalf.

The attorney for the son tried to enter his appearance under C.R.C.P 121, Sec. 1-1.1. Entry of Appearance under this rule was improper in a probate proceeding, and the Court concluded that C.R.P.P. 1(a) controlled, since the Rules of Probate Procedure “shall control” the choice when the rules conflict with the Rules of Civil Procedure.

The Court refused to recognize the son’s attempts to circumvent the Respondent’s representation (Respondent had her own attorney) by asserting that he was filing pleadings, or otherwise acting or speaking “on behalf of Respondent.”

[View full text][Additional]

[Return to top]
_________________________________________________________________________

In the Matter of the Estate of Robert Ramon Romero, 01PR1324

Petition for Formal Probate of Will and Formal Appointment of Personal Representative and Petition to Invalidate Will. Decedent left a will that devised his entire estate to his mother and sister. Decedent’s children objected to the probate of this will, asserting that their father either lacked the testamentary capacity to execute the document or had been unduly influenced in the documents execution by his mother. Court found that decedent’s children failed to meet their burden in proving that the decedent lacked testamentary capacity and that the proponent of the will overcame any presumption of undue influence based upon a confidential relationship.

[View full text] [Court of Appeals opinion]

_________________________________________________________________________

In the Matter of the Estate of Jonathan A. Laundry, 97PR1719

Conservator’s Motion for Award of Attorney’s Fees. Successor Conservator successfully brought an action to have former conservator removed for violation of Court order as to proper investments of conservatorship funds. Successor Conservator then filed a motion for reimbursement for attorney’s fees against the former conservator, personally, for pleading a substantially vexatious and groundless defense. Although the Court found that the defense that the Successor Conservator was not a suitable replacement for the position was not vexatious, the Court agreed that the defense that certain, risky investments satisfied the Court’s order requiring preservation of principal was groundless. The Court granted the motion for attorney’s fees as to the payment of all the fees of Successor Conservator’s expert, who testified regarding the groundless defense, and the portion of the Successor Conservator’s attorney’s fees associated with the groundless defense.

[View full text]

[Return to top]

_________________________________________________________________________

In the Matter of the Estate of Billie G. Cochran, 00PR115

Verified Petition to Determine Estate’s Interest in Real Property. The decedent entered into several property transactions with his daughter and her husband. The three individuals originally acquired the property as a joint tenancy. After the daughter obtained a divorce from her husband, the decedent and the ex-husband undertook several acts that seemed to demonstrate intent to destroy the joint tenancy. The deeds were never fully executed or recorded to reflect an ownership as tenancy in common, as the Estate contended. The Court deferred judgment in the matter during the present appeal of Canterbury v. Kovacich in the Colorado Supreme Court.

[View full text]

_________________________________________________________________________

In Re the Estate of Larry Trattler, Sr., 02PR1422

A complaint by a personal representative against a decedent’s ex-spouse for proceeds of a life insurance policy was dismissed per CRCP 12(b)(5). Pursuant to a decree of dissolution of marriage entered prior to his death, decedent was required to maintain life insurance to secure financial obligations to his ex-wife. Decedent chose a policy that provided benefits well beyond what was required, and named his ex-spouse as beneficiary. After decedent’s death, his surviving spouse (who was also personal representative) claimed that ex-spouse was required to return all proceeds above the requirements set forth in the divorce decree. The Court held that neither 15-11-804(2) nor any common law theory (such as unjust enrichment) provides a basis for revoking a valid beneficiary designation in this circumstance, and that 15-11-804(2) does not apply where a beneficiary designation is made after a divorce.

[View full text] [Court of Appeals opinion]

[Return to top]

_________________________________________________________________________

In the Matter of the Estate of Dennis Wayne Mindenhall, 00PR880

Children of decedent filed a Petition in Paternity challenging the assertion made by their mother, Kristy Mindenhall, that they are all biological children of decedent (and that therefore Kristy should receive the entire estate). Kristy argued that the Petition was time-barred pursuant to CRS 19-4-107. The Court held that the Petition was not time-barred on 3 separate grounds: 1) the Court has discretion regarding which of the paternity presumptions (found at CRS 19-4-105) to apply, and not all of them are subject to a limitations period; 2) CRS 13-8-103, Colorado’s general “tolling” statute, does not exclude paternity actions and thus may toll the limitations period urged here; 3) the UPA is not, as Kristy argues, the sole means of establishing paternity, and is often inapplicable to probate proceedings (because it can terminate claims before they accrue).

[View full text]

_________________________________________________________________________

In the Matter of the Estate of Juanita Elaine Beatty, 00PR1499

Petition for Order to Use Assets for Payment of Administrative Fees and Costs. Conservator filed a previous petition for fees and costs against the estate. The protected person objected to approximately half of the fees and the Court issued an order approving the payment of the uncontested portion of the request. The conservatorship was established prior to the adoption of the Uniform Guardianship and Protective Proceeding Act; as a result, the Court based its decision on the reasonableness of the fees and the benefit to the estate. The contested portion of the fees accrued after a successor corporate conservator took over the Petitioner’s role as conservator. In fact, a substantial amount of the fees were accrued during the conservator’s attempt to clear her name of any wrongdoing after her removal. The Court disallowed the remaining portion of contested fees.

[View full text]

_________________________________________________________________________

In the Matter of the Estate of Matthew Edward Urquhart, 99PR1542
In the Matter of the Estate of Dawn Urquhart, 99PR1543
In the Matter of the Estate of Gregory James Urquhart, 99PR1544

These cases involved a Petition for Establishment of a Court-Authorized Trust. The Petition was filed on behalf of three minors by their mother. The minors were about to receive residuary distributions from a trust that contained no provisions for creation of an ongoing trust for minors. The Petitioner requested that the Court approve the creation of a trust with minors' mother (petitioner) as its trustee that would hold the minors' property without further court supervision.

The Court found that the proposed trust was not an appropriate protective arrangement because it provided no opportunity for independent oversight.

[99PR1542 View full text]

[Return to top]

---

In the Matter of the Estate of James W. Fennell, 96 PR 110 (10/29/99)*

This Order is the third and final part of the Court’s ruling arising from a Motion for Supervised Administration and a Petition for Removal and Surcharge of Personal Representative and Trustee.

Having concluded that the personal representative and trustee acted properly in defending against the proceedings; that he acted in good faith; that the expenses incurred were necessary to mount a successful defense; and having been exonerated of the charges, the court found that the personal representative and trustee was entitled to reimbursement of his reasonable costs from the estate and trusts.

[View full text]

* This opinion consists of three parts. This is part three of three. See Fennell, 98PR110 (09/29/99) and Fennell, 98PR110 (07/09/99).

---

In the Matter of the Estate of James W. Fennell, 96 PR 110 (09/29/99)*

The Court denied a Motion for Partial Summary Judgment. A fiduciary is entitled to reimbursement of his litigation costs, including attorneys fees, incurred when successfully defending against a removal and surcharge action.

* This opinion consists of three parts. This is part two of three. See Fennell, 98PR110 (10/29/99) and Fennell, 98PR110 (07/09/99).

[View full text]

[Return to top]

---

In the Matter of the Estate of Sheldon K. Beren, Deceased, 96 PR 401 (09/23/99)*

Issue Presented: Whether the elective share pecuniary amount is entitled to share in the net probate income of the estate or to receive interest.

The Court held that, under current Colorado law, a surviving spouse is not entitled to income on the elective share under C.R.S. §15-1-417 of the Colorado Uniform Principal and Income Act. Requiring interest on the elective share is a legislative prerogative. It is improper for the Court to graft onto legislative provisions specific benefits that could have been addressed but were not. As a result, the Court declined to legislate an award of interest on the spouse’s elective share.

[View full text]

*This opinion consists of two parts. This is part two of two. See Beren 96PR401 (05/18/98) [View full text]

---

In the Matter of the Estate of Helen E. Price, a/k/a Helen Elizabeth Price, a/k/a Helen Elizabeth Stephany Price, 98 PR 1258 (09/21/99)

Petition for Formal Probate of Will and Formal Appointment of Personal Representative. Both the decedent’s sister and a friend of the decedent objected to the probate of the decedent’s will on the grounds of undue influence and lack of testamentary capacity.

The Court concluded that the contestants met their burden of proof and found that the decedent did not have testamentary capacity at the time her will was either written or executed. The Court also found that, even if the decedent did have sufficient mental capacity to sign and execute her will, her will would still be held void by the Court as a product of undue influence and fraud.

[View full text]

[Return to top]

---

In the Matter of the Estate of Allen Bartlett, 98 PR 2085 (09/14/99)

 

Petition for Formal Probate of Holographic Will.

The Court found that the holographic will was written by decedent on July 19, 1998. This finding is supported by the presence of blood on the paper of the document and the evidence of decedent’s suicide attempt on that same day. The document was intended to be the decedent’s last will and it expressly revoked all prior wills. The material provisions of the holographic will are in the decedent’s handwriting.

Colorado law is long-settled that the appointment of a guardian or conservator does not establish lack of capacity to execute a will. Therefore the contestant must prove by a preponderance of the evidence that the decedent lacked testamentary capacity at the time the will was written and cannot rely on the Court’s prior protective orders.

The test for testamentary capacity in Colorado is also reflected in settled law. The testator must know and understand: that he is making a will; the nature and extent of the property he owns; how that property will be distributed under the will; that the will distributes the property as he wishes; and those persons who are the natural ones to receive his property. The Court found that each of these elements was proven in this case.

[View full text]

---

In the Matter of the Estate of James L. Gill, 98 PR 958 (09/09/99)

 

James L. Gill and his wife Judith Mae Gill died in an automobile accident on May 16, 1998. On October 15, 1998, Mrs. Gill’s personal representative and her heirs filed a Claim against Mr. Gill’s estate based on her wrongful death. The Claim was disallowed on December 8, 1998. Claimants filed a Petition For Allowance Of Claim on February 5, 1999. Insurers filed a Petition for Declaratory and Other Relief. They asked the court to determine whether the terms of their liability polices require them to defend against and indemnify the Gill estate for the wrongful death claim.

Probate court is a court of limited jurisdiction. Neither the state constitution nor title 13 give the court jurisdiction to hear actions brought pursuant to the Wrongful Death Act, nor for that matter, other non-probate statutory actions. The underlying wrongful death action and declaratory judgment action are dismissed for lack of subject matter jurisdiction.

The Estate filed a Motion for Partial Summary Judgment asking the court to determine that, except to the extent of possible insurance coverage, the claim against the estate is barred because it arose "at or after death." The court FINDS that C.R.S. § 15-12-803(2)(b) is inapplicable because the claim is based on Mr. Gill’s negligence, which occurred before his death.

[View full text]

[Return to top]

---

In the Matter of the Estate of Dale L. Havard, 98 PR 1121 (09/08/99)

 

Petition for Return of Estate Property and Surcharge for Breach of Fiduciary Duty.

The Court found that the decedent’s agents breached their fiduciary duty to decedent, an elderly stroke victim. As a result, the Court held them liable for the loss of funds suffered by the principal during their agency. Also, the sale of the decedent’s house during the agency for less than fair market value was held void.

The Court also ordered that both agents forego any fee otherwise paid to or due to them for their services as agents.

The Court found that the three wills prepared by the agents and signed by the decedent were the product of undue influence and should be held void by the Court.

[View full text]

---

In the Matter of the Estate of Juanita M. Foster, Deceased, 90 PR 1979 (08/13/99)

 

Claim of Homestead Exemption is denied. The fact of claimant’s use of the subject property as his residence was contested.

Claimant provided no evidence at the hearing that the residence in question was occupied by him as his home other than his own testimony. His driver’s license (which the Court would regard as proof of residency) did not list the residence in question as his home. This evidence casted doubt on claimant’s credibility.

Based upon the uncertainty of the evidence provided as to claimant’s residence, the Court found that the burden of proof was not met. Accordingly, the Court did not allow the homestead exemption.

[View full text]

[Return to top]

---

In the Matter of the Estate of James W. Fennell, 96 PR 110 (07/09/99)*

 

Heirs and beneficiaries of testamentary trust filed a Motion for Supervised Administration and a Petition for Removal and Surcharge of Personal Representative and Trustee.

The Petition for Removal and Surcharge of the personal representative and the Motion for Supervised Administration were both denied upon the Court’s finding that the allegations of wrongdoing were not supported by the evidence. Fees of the fiduciary and his advisors were allowed.

* This opinion consists of three parts. This is part one of three. See Fennell 96PR110 (10/29/99) and Fennell, 96PR110 (09/29/99).

[View full text]

---

In the Matter of the Estate of William M. Booth, 97 PR 138 (06/09/99)

 

Co-Personal Representatives Petition for Instructions concerning surviving widow’s rights to the consumption of 67 bottles of wine owned by the estate. The parties stipulated that the wine collection is part of the devise of a legal life estate to widow in personal and household effects. The testator’s children (from a prior marriage), are the remainder beneficiaries.

The Court concludes that the intent of the testator was to give the specific gift of the personal and household effects to his surviving spouse in the form of a life estate, regardless of the deterioration in their condition or value. Where normal use and enjoyment of specifically devised personal property includes consumption, such as the wine collection, the life tenant is entitled to reasonable consumption even if the remaindermen’s interest is thereby extinguished.

[View full text]

[Return to top]

---

In the Matter of Francisco Garcia, 99 PR 856 (05/24/99)

 

An interested party petitioned for an Order Determining Control Over Remains and a Request for a Temporary Restraining Order. Petitioner requested an order from the Court directing Crown Hill Cemetery and Mortuary to ignore the effect of a New Mexico state court order. The Court held that Petitioner should appeal the New Mexico order rather than seek a contradictory order from a Colorado Court. The petition and restraining order were denied.

[View full text]

---

In the Matter of William A. Goffman, 98 PR 801 (05/04/99)

 

A Petition to Determine Common-Law Marriage.

Petitioner did not establish by a preponderance of the evidence that a common law marriage existed between her and the decedent. Of significance to the Court was the fact that Petitioner did not assume the marital relationship at significant times. For example, petitioner was a professional tax return preparer. She prepared the decedent’s income tax returns during the time she claimed the marriage existed. She claimed single, unmarried status for decedent, and both she and decedent signed and filed these returns. Petitioner also indicated that she was divorced on her own medical records.

[View full text]

---

In the Matter of Solee Vallez, 93 PR 1260 (04/28/99)

 

On August 17, 1993, this Court entered an Order Granting Leave to Settle Personal Injury Claim. The order directed Lisa Aleman to deposit funds into a restricted account for Solee Vallez’s benefit. The bank that received and accepted the funds allowed $3,715.00 to be withdrawn from the account without Court order. The Bank appeared before the Court on a show cause order. The Bank was ordered to restore the account to its proper balance including interest lost. The Court will consider whether to require payment of Court costs incurred.

[View full text]

[Return to top]

---

In the Matter of John Hutman, 96 PR 1252 (02/17/99)

 

Some devisees filed an Objection to Personal Representative’s Schedule of Distribution, Amended Accounting, and the Petition for Authority to Pay Personal Representative’s Fees and Costs from the Estate Funds.

The Court concluded that the personal representative defended the action in good faith and was entitled to retain counsel at estate expense to rebut the allegations. Objectors did not prove that the personal representative should be surcharged. The Court considered the fee paid to the personal representative and to the personal representative’s attorneys in accordance with the statutory standards set out in C.R.S. § 15-12-721. The fees were approved as reasonable.

[View full text]

---

In the Matter of the Estate of Alfreda Cassidy, 95 PR 2375 (11/30/98)

 

Conservator Wells Fargo Bank moved For Approval of Its Fees and For Discharge as Conservator for Alfreda Cassidy; and Co-Guardian Stephanie Conrardy’s moved for Approval of Fees and for Discharge as Co-Guardian. Mrs. Cassidy objected to the actions of the conservator and co-guardian and objected to the requested fees.

The Court approved the conservator’s actions and its requested fees. The conservator was entitled to make distributions for attorneys fees incurred by the guardian and conservator and fees incurred for the support, care, or benefit of Mrs. Cassidy, without Court approval. Such distributions would not be surcharged against the Bank unless it was proven that the conservator knew the attorney fees were improper, that the guardian was deriving personal financial benefit from the distribution, or that the co-guardian’s recommendations were clearly not in the best interests of Mrs. Cassidy. After reviewing all of the evidence, the Court concluded that the conservator acted properly.

In her Motion for Approval of Fees and Discharge, Conrardy asserts that the guardianship services provided to Mrs. Cassidy were necessary, reasonable, and beneficial to Mrs. Cassidy; and that in accordance with the financial plan filed with and approved by the Court, Conrardy is entitled to reasonable fees for her services. The Court considered all of the objections made by Mrs. Cassidy to the fees requested and concluded that the objections were primarily directed to the hourly rates and billing practices. The fees were allowed in part and disallowed in part.

Personal animosity between the guardian and Mrs. Cassidy’s attorney caused errors in judgment on both sides and resulted in unnecessary fees that should not have been paid by Mrs. Cassidy. The Court declined to award punitive damages against any party but required that each side pay his/her own attorney fees.

[View full text]

[Return to top]

---

In the Matter of The Estate of Spicer H. Breeden, 98 PR 562 (11/10/98)*

 

The Court considered Respondents’ Motion for Post-Trial Relief Under C.R.C.P. 59(3) and (4) and C.R.C.P.60(A). Respondents requested that the Court reconsider and amend its Order of September 17, 1998 approving portions of petitioner’s Bill of Costs. The Court revoked its Order on Bill of Costs and issued this amended Order:

Petitioner filed the Bill of Costs outside the statutory time frame for doing so. Petitioner’s failure to file within 15 days of the entry of the Court’s order placed the granting of the Bill of Costs within the discretion of the Court. In considering a Bill of Costs, the Court must determine 1) whether adequate documentation was supplied to support the costs; and 2) the reasonableness of the costs.

Because of Petitioner’s 18-month delay in submitting the Bill of Costs, it was necessary to scrutinize the support for and reasonableness of the costs very closely. No documentation was submitted by Petitioner to support any of her claimed costs. The Court was unable to make a finding as to the reasonableness of the costs. Therefore, Petitioner’s Bill of Costs was denied.

* This opinion on bill of costs consists of two parts. This is party two of two. See Breeden, 98PR562 (09/07/98).

[View full text]

[Return to top]

---

In the Matter of the Harry H. Beren Trust D, 97 PR 373 (09/23/98)

 

In this case for interpretation of trust language, the trustees and some of the beneficiaries moved for summary judgment. The movants argued that the trust did not terminate upon the death of either the settlor or the first successor trustee. Further, they moved for summary judgment on the basis that the trust language is not ambiguous. The Court agrees and refuses to allow parol evidence to vary the language of the trust agreement.

[View full text]

---

In the Matter of the Estate of Anna Jaworski, 97 PR 138 (09/22/98)

 

The Department of Social Services moved for Appointment of Guardian ad Litem for the spouse of an allegedly incapacitated person, arguing that it is in the Court’s discretion to make such an appointment. The motion was denied.

[View full text]

---

In the Matter of the Estate of Mary Regan MacDonald, 97 PR 761 (09/15/98)

 

A friend of decedent filed a Petition for Allowance of a Claim for personal care and services he rendered to decedent and reimbursement of expenses he advanced decedent prior to her death.

Petitioner's claim for services is based on express contract, quantum meruit, promissory estoppel, equitable estoppel, implied contract, unjust enrichment, and resulting or constructive trust. The Court found no express contract.

The parties raise two competing theories of implied contract. The estate argues that contract implied-in-fact is the appropriate theory, while the Petitioner argues that contract implied-in-law is appropriate.

The elements of a contract implied-in-fact are 1) the plaintiff rendered services to the defendant; 2) the plaintiff did so without a specific agreement as to payment, but with the reasonable expectation that he would be paid the reasonable value of such services by the defendant; 3) the defendant requested or accepted such services expecting to pay for them or under such circumstance that she knew, or as a reasonable person should have known, that the plaintiff expected to be paid; and 4) the reasonable market value of the services rendered. Under this analysis, Petitioner's claim fails. The evidence does not support the contention that petition had a reasonable expectation that he would be paid for the services he performed for the decedent. Therefore, it can not follow that the decedent knew or should have known that the petitioner expected to be paid.

The elements of a contract implied-in-law are: 1) a benefit conferred upon defendant; 2) the defendant realized or appreciated the benefit; 3) the defendant accepted the benefit under circumstances where it would be inequitable for the defendant to retain it without paying its value. Whether the petitioner can satisfy these elements becomes irrelevant if there is a familial relationship between the parties. If the relationship between the parties is familial, the implied contract is automatically negated and replaced with a presumption that the services were gratuitous. The relationship between the petitioner and the decedent was one of mutual love and affection. Petitioner failed to provide sufficient evidence to overcome the presumption.

As to petitioner's reimbursement claim, petitioner failed to provide adequate documentation to prove he actually incurred the expenses.

[View full text]

[Return to top]

---

In the Matter of the Estate of Spicer H. Breeden, 96 PR 6562 (09/07/98)*

 

This matter comes before the Court on Petitioner’s Bill of Costs. Petitioner filed the Bill of Costs outside the statutory time frame for doing so. Respondents argue that because Petitioner did not file a motion for extension of time to file a Bill of Costs, her claim should be barred. Colorado case law does not support that contention. Therefore, because the purpose of the rule would not be frustrated, in its discretion, the Court considered the Bill of Costs to have been timely filed.

The Court awarded the Bill of Costs to Petitioner in the amount of $3,182.01 for travel and expert fees, of experts, services and transcriptions costs of reporting services and of a video. All defending parties were held jointly and severally liable for this amount. The Court denied Petitioner’s request for office costs in the amount of $3,282.28 connected with trial preparation.

* This opinion on bill of costs consists of two parts. This is part one of two. See Breeden, 98PR562 (11/10/98).

[View full text]

---

In the Matter of the Estate of Monte Goldman, 95 PR 1771 (06/05/98)

 

Petitioner performed legal services in Oklahoma for the Personal Representative of the estate. Petitioner asserts that, in accordance with the fee agreement and Oklahoma law, it is entitled to a "fee enhancement" of $63,422.

The Court first determined which state law was applicable. The Court held that in this case, the presumption that the state where services are performed is the state having the most significant contacts, is rebutted by the fact that the Petitioner was aware that the personal representative was a Colorado fiduciary and was governed by the laws and courts of Colorado. Therefore, the Court concludes that Colorado law applies to this issue.

The letter to the personal representative describing the "fee enhancement" arrangement was not an enforceable contract and that it was also an invalid contingent fee agreement under Colorado law.

[View full text]

[Return to top]

---

In the Matter of the Estate of Sheldon K. Beren, 96 PR 401 (05/18/98)

 

The personal representative petitioned for Instructions Concerning the Obligation of the Testamentary Charitable Trust to Contribute to the Satisfaction of the Elective Share Amount. Some of the devisees argued that all of the devisees were required to contribute to the surviving spouse’s elective share amount. The beneficiaries of the charitable trust argued that a charitable trust is exempt from contribution. First, the charities argued that it was not the decedent’s intent that the elective share be satisfied from the charitable trust. Second, they argued that the statutory language of §15-11-203(2), "equitably apportion," gives the Court authority to avoid the pro rata contribution rule by finding an equitable basis to exonerate the charitable trust.

The Court concluded that the entirety of the will did not manifest any intent to exempt the charitable trust in the event the spouse elected against the will. Further, the legislative history did not support the statutory interpretation proposed by the charities. Section 203 requires that all devisees contribute to the spouse’s elective share in proportion to their interests in the estate. The decedent did not manifest an intent to vary from this statutory mandate.

*This opinion consists of two parts. This is part one of two. See Beren 96PR401 09/23/99).

[View full text]

[Return to top]

---

In the Matter of the Estate of Gladys M. Van Dyne, 96 PR 239 (03/02/98)*

 

The Court reviewed the Magistrate’s December 22, 1997 Order. On December 15, 1997, a hearing began before the Magistrate to determine whether Petitioner had good cause for not having timely-filed an objection to admitting the will to probate. At the hearing, the Magistrate determined that the Personal Representative lacked standing to participate in the hearing and continued the hearing to a later date, so as to allow adverse parties in interest to participate if they wished on the basis that they may have mistakenly assumed that the Personal Representative would be opposing Petitioner’s motion.

The Court found no error in the Magistrate’s order. Due to the misunderstanding that the Personal Representative could represent their interests, none of the devisees were present in person or by counsel. Basic due process requires that the non-appearing parties be allowed to make informed decisions about whether or not to oppose Petitioner’s efforts (Opinion by J. Benton).

* This opinion consists of two parts. This is part two of two. See Van Dyne, 96PR239 (12/22/97).

[View full text]

[Return to top]

---

In the Matter of the Estate of Glady M. Van Dyne, 96 PR 239 (12/22/97)*

 

A motion to vacate an order admitting will to probate was set for hearing. At the hearing, the Magistrate ruled that the Personal Representative lacked standing to oppose the objector's position. Although a will was admitted, its validity was now in question. Until the question was settled, the Personal Representative should not be concerned, in a legal sense, with the question of who may be declared successor to the estate. Its duty, at this point, is to preserve the estate pending the court's determination of whether final distribution should be paid to devisees under the will or to heirs at law. (Opinion by Magistrate Franklin)

* This opinion consists of two parts. This is part one of two. See Van Dyne, 96PR239 (03/02/98).

[View full text]

---

In the Matter of the Estate of Frederick H. Weeks, 97 PR 432 (01/12/98)

 

Colorado law provides for the creation of a statutory, discretionary trust to be funded with that portion of elective share and supplemental elective share amounts due from the decedent’s probate estate and recipients of the decedent’s nonprobate transfers to others. The property contained in an elective share trust must be distributed in such a manner as to protect the surviving spouse’s eligibility for Medicaid benefits, and such property is not available to pay for the cost of her care which is otherwise provided for by the Colorado Medicaid program. The surviving spouse has no right to compel distributions from the trust, and does not have the right to terminate the trust unless she regains legal capacity.

[View full text]

[Return to top]

---

Phoenix Home Life Mutual Insurance Company v. Morse, 97 CV 4213 (01/21/98)

 

A law firm requested enforcement of an attorneys fee retaining lien against funds held in the Court’s Registry. The father and maternal grandparents of minor children disagreed as to who should control insurance proceeds payable for the benefit of the children, which led to hostile and protracted litigation. The insurance company interpled the proceeds of the policy and deposited the full amount into the registry of the Court. Eventually, the parties stipulated to the control of the proceeds. The father’s counsel filed a lien claim for $38,831.77 against the proceeds. Grandparents’ counsel made no claim for fees.

A retaining lien can only be asserted against funds owed to a client to compensate the attorney for services performed for or on behalf of the client. The law firm represented the father in several capacities related to this litigation, including as conservator to the children, but the law firm did not represent the children. There was no dispute that the funds were to benefit the children exclusively. The fees incurred by the father were grossly disproportionate to the benefit received by the children and therefore the lien was disallowed.

[View full text]

[Return to top]

---

In the Matter of the Estate of Larry E. Rother, 97 PR 1578, (12/09/97)

 

The decedent may have died a domiciliary of the state of Nebraska. The facts alleged by the parties raise material questions of fact concerning the decedent’s domicile at the time of his death. Under these circumstances, the Court denied summary judgment on the question of domicile.

The purported will offered by Petitioner cannot, as a matter of law, be admitted to probate as a will under the Colorado Probate Code. A document may be found to be a valid will, and hence, admitted to probate if either the testator set down the entire document or material portions thereof in his own handwriting, or if the document was signed by the testator in the conscious presence of at least two individuals who then also signed the will either before or after the testator’s death. There is no factual dispute that the testator’s signature on the document offered by Petitioner was not witnessed. As a matter of law, the document cannot be admitted to probate as a will under any provision of the Colorado Probate Code. The Court granted summary judgment on the question of validity of the will.

[View full text]

---

In the Matter of the Separate Trust for the Benefit of Bettina Bancroft Klink Under the 1941 Hugh Bancroft, Jr. Trust, 96 PR 1979 (06/30/97)

 

Petition for Instructions filed by the trustees to determine the proper apportionment and distribution of certain 1996 trust income which the trustees had accumulated and not yet distributed as of the date of the income beneficiary’s death. The co-executors of the income beneficiary’s estate petition sought a Court Order stating that the trustees had improperly 1) allocated all of their fees solely to income during their administration of the trust; 2) allocated those fees between principal and income; and 3) directed the trustees to refund to the estate some of the trustees fees charged during their administration and allocated to the income beneficiary.

On the trustees’ Petition for Instructions, the Court found that the trustees are required to distribute ½ of the 1996 accumulated income to Ms. Klink’s estate. The trustees, in their discretion, may distribute the other half to Ms. Klink’s estate or to the remainderman. This finding was consistent with the trust language and the settlor’s intent.

As to the proper allocation of trustees’ fees, the Court turned to the settlor’s intent and the trust language. Again, the settlor left it in the trustees’ discretion from which funds the trustees’ fees were paid. The trustees used their best informed judgment in good faith in exercising their discretion as to the allocation of trustees fees. The trustees properly considered a variety of relevant factors, including the trust’s generation-skipping exemption status, estate planning objectives of the settlor, tax legislation, and past practice. Therefore, the Court denied the estate’s petition to require the trustees to reallocate the fees.

[View full text]

[Return to top]

---

In the Matter of the Estate of Letty Milstein, 96 PR 640 (06/03/97)

 

Permanent protective orders are sought for this person. The determination of incapacity and the need for protection are not before the Court, these issues having previously been heard or stipulated. Prior to the permanent orders hearing, the incapacitated/protected person's counsel advised the Court that Mrs. Milstein was unable to effectively participate in a relationship with counsel. The Court appointed a guardian ad litem.