Sixteenth Century Statute Reviewed By Colorado Courts


Under English practice before the sixteenth century there were no standardized requirements for making a valid will. Disposition of a decedent’s property was determined by each court under local rules and customs, and the actual division was therefore unpredictable.

Henry VIII approved Parliament’s “Statute of Wills” in 1540, and the law was further developed in 1677. For the first time a requirement was introduced that all wills be in writing, signed by the decedent and witnessed.

The requirement of a signed, witnessed, writing was adopted in the United States from early days and has held sway for three centuries of Anglo-American law. In a handful of other countries the requirement of witnessing has been relaxed somewhat; Israel and the provinces of Manitoba and South Australia have all permitted wills that do not meet the formal requirements if they can be proven to be the actual wishes of the decedent.

In the United States there has been a national movement to reduce the formal requirements of probate proceedings. The Uniform Probate Code, first promulgated in the early 1970s (and adopted in Arizona in 1973), has been a leading force in relaxing probate and estate planning requirements. In recent years the Uniform Probate Code has even suggested a partial return to the law before Henry VIII and the Statute of Wills.

Colorado was the first U.S. state to adopt the Uniform Probate Code’s new provision on acceptance of wills which do not meet the Statute of Wills standards. The first case testing the meaning of Colorado’s law has now been decided in that state’s courts.

The decedent’s name was Sky Dancer, and her death in December, 1997, was attributed to gunshot wounds. When police investigated they found a four-page typewritten document titled “Last Will and Testament of Sky Dancer” and a two-page affidavit stapled to the longer document. The notarized affidavit was signed by Sky Dancer and two witnesses, and acknowledged that the attached document was her will. Apparently Sky Dancer had signed the affidavit, but not the will, in front of the witnesses and notary.

If Sky Dancer’s “will” was valid, all her property would pass to her companion Lawrence Barnes. If she died without a will, all her property would pass to her mother, Laura J. Fisher. The Colorado courts were required to interpret the meaning of Colorado’s liberalization of the probate law.

Sky Dancer’s “will” was determined to be invalid. The Colorado Court of Appeals reasoned that even under the new standards there must evidence that the decedent intended a particular document to be her will, and Mr. Barnes had not produced enough evidence. Estate of Sky Dancer, October 12, 2000.

Arizona has not yet adopted the revisions to the Uniform Probate Code which would permit unwitnessed wills to be admitted in some circumstances. Even if the law changes it will be important to have two witnesses in nearly every case. While a notary is not required, it can make admission of the will to probate somewhat easier, particularly if the witnesses are unavailable after the death of the will’s signer.

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