February 21, 2019

Colorado Court of Appeals: All Prospective Guardians Must Undergo Statutory Vetting Process Prior to Appointment

The Colorado Court of Appeals issued its opinion in In re Interest of Arguello on Thursday, February 7, 2019.

Adult Guardianship—Court Visitor—Judicial Appointment of Permanent Guardian—Conflict—Visitor’s Report

Arguello is an adult resident of Pueblo who suffers from dementia, developmental disability, and mental health illness. The court appointed Baslick as emergency guardian when medical decisions needed to be made and family was unavailable. Baslick works for Colorado Bluesky Enterprises, Inc. (Bluesky), which provides Arguello with case management services. Soon after Baslick’s appointment, several individuals petitioned the court to be appointed permanent guardian.

The court appointed a court visitor to prepare a visitor’s report concerning all prospective guardians. The first visitor’s report did not recommend Baslick because of her employment with Bluesky and the existence of a potential conflict of interest under C.R.S. § 15-13-310(4), which precludes a long-term care provider from also serving as a guardian. After several hearings and finding no suitable guardian from among the petitioners, the court sua sponte appointed the Arc of Pueblo (ARC) as the permanent guardian. Bluesky and Baslick moved for reconsideration, and the district court denied the motion.

On appeal, Bluesky argued that it is not a long-term care provider under the statute and the court erred in applying the statutory prohibition to Baslick. Here, while Bluesky may not fall “squarely” within the definition of a long-term care provider, the facts demonstrate a potential conflict of interest between Bluesky and Baslick that rendered her unsuitable as a guardian for Arguello. Bluesky provides substantial assistance to Arguello in the form of case management services. As guardian, Baslick would be able to recommend increased funding for Arguello and thereby generate revenues for Bluesky. She would also have oversight of Bluesky’s case management services and could be hesitant, as a Bluesky employee, to question Bluesky’s actions. Accordingly, the district court’s conclusion is supported by the record, and the court acted within its discretion in finding that Arguello’s best interests would not be served by appointing Baslick.

Bluesky next contended that the court violated the statutory mandate in C.R.S. § 15-14-305(1) by appointing ARC without first appointing a visitor and receiving a report. The court is required to appoint a visitor for every petition for guardianship filed, and all prospective guardians must undergo the statutory vetting process set forth in C.R.S. §§ 15-14-304 and -305 before appointment may occur. The trial court erred in sua sponte appointing a guardian who did not go through this process.

The order appointing ARC as guardian for Arguello was reversed, and the case was remanded to appoint a visitor and follow the statutory procedure to appoint a guardian for Arguello. The order was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Personal Representative Entitled to Access to Decedent’s Non-Probate Legal Files

The Colorado Court of Appeals issued its opinion in In re Estate of Rabin on Thursday, December 28, 2018.

Probate — Duty of Personal Representative; Attorneys and Clients — Attorney-Client Privilege

A division of the court of appeals considers whether the right of a probate estate’s personal representative to possession of the decedent’s property under section 15-12-709, C.R.S. 2018, encompasses the right to access the decedent’s non-probate legal files, or whether such access conflicts with the rule that the attorney-client privilege survives the death of the client. The division holds that it does not conflict, because the personal representative steps into the shoes of the decedent and becomes the privilege holder. Therefore, the personal representative is entitled to the legal files absent contrary instructions in the will.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Former Spouse Not Foreclosed on Standing Grounds from Seeking Reformation of Will

The Colorado Court of Appeals issued its opinion in In re Estate of Little on Thursday, November 29, 2018.

Family LawCommon Law MarriageProbateWillsReformation to Correct Mistakes.

Little’s will devised her estate to her spouse Curry, from whom she later divorced. After her death, Curry claimed that he was entitled to inherit under Little’s will because they had remarried at common law before she died. Alternatively, he sought reformation of the will, contending that Little intended to devise her estate to him regardless of their marital status. The trial court found that Curry failed to show he and Little remarried at common law, and Curry otherwise lacked standing to seek reformation of her will.

On appeal, Curry contended that the provisions in Little’s will devising her estate to him were revived by their common law remarriage under C.R.S. § 15-11-804(5). There was substantial evidence in the record to support the trial court’s findings that Curry and Little were not common law married after their divorce.

Alternatively, Curry contended that the trial court erroneously found he lacked standing to seek reformation of Little’s will under C.R.S. § 15-11-806 because when Little executed her will, she intended for him to inherit her estate regardless of their marital status. The court of appeals reviewed the statutory scheme and found no indication that the General Assembly intended to exclude a former spouse from pursuing reformation under C.R.S. § 15-11-806, or that it intended C.R.S. § 15-11-804(5) to be an ex-spouse’s sole and exclusive remedy for avoiding a statutory revocation due to a divorce. Accordingly, Curry had standing to pursue his reformation claim.

The order determining that Little and Curry were not common law remarried was affirmed. The dismissal of Curry’s reformation claim was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Gives: DU’s Tribal Wills Project Needs Volunteers and Donations

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 4, 2018. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona, South Dakota, and Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2019, 24 students and 7 supervising attorneys will travel to Tohono O’odham Reservation, near Tucson, Arizona. The Tohono O’odham Reservation is partially in the United States and partially in Mexico. At the invitation of various tribes, TWP has now been to six states: Arizona, Colorado, Montana, New Mexico, South Dakota, and Utah.

It costs approximately $15,000 to fund each trip, which is funded entirely by donations. Through your donations, you can ensure that no student is prevented from participating in this wonderful educational experience because of finances.

TWP is also actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Colorado Court of Appeals: Surviving Spouse Not Entitled to Minimum Elective Share When Nonprobate Assets Exceeded Elective Share Amount

The Colorado Court of Appeals issued its opinion in In re Estate of Cloos on Thursday, November 15, 2018.

Probate—Elective Share—Supplemental Elective Share.

The decedent devised her entire estate to her daughter, Jean Ann. Because the will devised the entire estate to Jean Ann, Jean Ann’s father, Cloos (who was the decedent’s husband), made statutory claims for shares of the estate. He claimed a $32,000 family allowance (FA) and a $32,000 exempt property allowance (EPA). He also petitioned for a supplemental elective share of the marital property. Jean Ann was the original personal representative (PR), but the court later appointed Findley as successor PR due to mutual distrust between Jean Ann and Cloos. Findley approved the sale of the marital home to Cloos to be paid with credits for his FA and EPA claims and gave Cloos a credit of $50,000 from probate estate funds for his “statutory minimum elective-share,” as well as 48,500 cash, which was the only asset in the estate. The district court granted a final settlement of the estate.

On appeal, Jean Ann contended that the district court erred by allocating $50,000 in elective-share funds from the probate estate to Cloos. A surviving spouse married for 10 years or more is statutorily entitled to an elective share of marital assets equal to (1) 50% of the augmented estate (standard elective share), or (2) $50,000 (supplemental elective share), whichever is greater. In satisfying the $50,000 amount, the surviving spouse’s own title-based ownership interests count first; for this purpose, the survivor’s assets include amounts transferred to the survivor at the decedent’s death and amounts owing to the survivor from the decedent’s estate under the elective share formula.

In this case, Cloos’s share of marital assets in real estate interests alone far exceeded $50,000 because he owned half of the Fort Collins house (appraised at $325,000) and all of the Wyoming cabin (assessed at $277,000). Therefore, Cloos is not entitled to a supplemental elective share of the estate, and it was error to credit him with a supplemental $50,000 of probate estate funds toward his purchase of the Fort Collins house. However, the record does not contain a calculation of the augmented estate at the time of the decedent’s death. While it appears from the limited information in the record that Cloos held well over 50% of the augmented estate and was thus not entitled to any further assets from the probate estate, there is no evidence in the record that the successor PR calculated either the actual value of the augmented estate or the percentage held by Cloos. It is thus unclear whether Cloos was entitled to any standard elective-share credit toward the house.

The order approving the final settlement of the estate was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Dead Man’s Statute Now Applies in “All Civil Actions”

The Colorado Supreme Court issued its opinion in Estate of Brookoff v. Clark on Monday, September 24, 2018.

Statutory Interpretation—Dead Man’s Statute.

In this case, the supreme court interpreted Colorado’s “Dead Man’s Statute” in light of recent amendments that removed language limiting the statute’s applicability to matters in which a decedent’s estate was a party. Discerning no ambiguity in the current version of the statute, the court held that these amendments expand the scope of the statute such that it is now applicable “in all civil actions.” The court also held that because the statute applies irrespective of the potential impact of a judgment on an estate, the existence of insurance coverage is not a factor militating for or against the applicability of the statute.

Summary provided courtesy of Colorado Lawyer.

Colorado Rules for Magistrates and Colorado Appellate Rules Amended

On Tuesday, September 11, 2018, the Colorado State Judicial Branch announced Rule Changes 2018(13) and 2018(14), amending the Colorado Rules for Magistrates and the Colorado Appellate Rules, respectively.

Rule Change 2018(13) amends C.R.M. 6, “Functions of District Court Magistrates,” to update references to the Colorado Rules of Probate Procedure in subparagraph (e)(1)(A). Rule Change 2018(14) amends C.A.R. 3.4, “Appeals from Proceedings in Dependency or Neglect,” to update a cross-reference to C.A.R. 53(h) in subparagraph (l).

For the redlines and clean copies of Rule Change 2018(13) and Rule Change 2018(14), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Updated Colorado Rules of Probate Procedure Adopted by Colorado Supreme Court

On Friday, August 31, 2018, the Colorado State Judicial Branch released Rule Change 2018(11), adopted June 28, 2018, and effective September 1, 2018. The rule change adopts the proposed revisions to the Colorado Rules of Probate Procedure. The changes to the Probate Rules were proposed by a task force that included many members of the CBA Trust & Estate Section. The task force reworked, renumbered, and revised the Rules.

The new Probate Rules are available here. In addition to the adoption of the new Probate Rules, the court also adopted changes to several of the probate JDF forms. These changes are also available here. The special mental health forms were not adopted.

For a redline and clean version of Rule Change 2018(11), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Supreme Court: Colorado Court Lacks Jurisdiction to Award Attorney Fees for Foreign Action

The Colorado Supreme Court issued its opinion in Roberts v. Bruce on Monday, June 18, 2018.

Attorney Fees—Statutory Interpretation.

In this case, the supreme court considered whether a trial court may award attorney fees under C.R.S. § 13-17-102 for conduct occurring outside Colorado courts. Reviewing the plain language of 13-17-102, the court concluded that an award of attorney fees pursuant to that section is limited to conduct occurring in Colorado courts and therefore affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: District Court Lacks Jurisdiction Over Respondent who Never Received Notice of Protective Proceeding

The Colorado Court of Appeals issued its opinion in In the Interest of Spohr on Thursday, May 17, 2018.

Emergency Guardianship—Non-Emergency GuardianshipPersonal Service of Notice—Jurisdiction—Probate Code.

On July 15, 2016, the Fremont County Department of Human Services (Department) filed a petition for emergency appointment of a guardian for Spohr in the district court. Counsel was appointed for Spohr and an emergency hearing was held three days later. There was no transcript of the hearing and no indication that Spohr was present or that he received notice of the hearing. On July 19 the magistrate issued an order dispensing with notice under C.R.S. § 15-14-312 stating that Spohr would be substantially harmed if the appointment was delayed. The court appointed the Department as emergency guardian and required notice of the appointment to be personally served on Spohr within 48 hours, as required by C.R.S. § 15-14-312(2). There is no proof that service was made. Despite the C.R.S. § 15-14-312(1) requirement that an emergency guardian appointment may not exceed 60 days, the court did not hold another hearing for more than six months and the emergency guardianship remained in place during that time. A permanent guardian was appointed for Spohr at a February 2017 hearing, but there is no indication that he was served with notice of this hearing. The trial court record includes a finding that the “required notices have been given or waived.”

The court of appeals previously remanded this case to the district court to make findings as to whether any of the required notices were ever sent to Spohr. On remand, the Department presented no further information and the court found that the record remained unclear as to service.

On appeal, Spohr argued for the first time that he did not receive personal service of a notice of hearing on the petition for guardianship. As relevant to this case, the Colorado Probate Code requires personal service on the respondent of a notice of hearing on a petition for guardianship. The Probate Code would have allowed the appointment of an emergency guardian to be made without notice to Spohr only if the court found, based on testimony at the emergency hearing, that he would have been substantially harmed if the appointment were delayed. If the protected person was not present at the hearing, he must be given notice within 48 hours after the appointment. While the magistrate made this finding, the requisite notice within 48 hours of the appointment was never made.

The Probate Code does not contain provisions for how a transition is to be made from an emergency guardianship to a non-emergency guardianship. In the absence of such provision, the court concluded that after the 60-day limit on emergency guardianship, if a guardianship is still sought for the protected person, C.R.S. § 15-14-304, governing judicial appointment of a guardian on a non-emergency basis, must be followed. Among other requirements for this process, C.R.S. § 15-14-309(1) requires that a copy of the petition and notice of hearing on the petition must be served personally on the respondent. Further, the notice requirement is jurisdictional, and the lack of notice may therefore be raised at any time. Here, Spohr was not given notice within 48 hours after the appointment of his emergency guardian, nor did he waive notice of the appointment and the ability to request a hearing on the emergency guardian’s appointment. And the emergency guardian served long after 60 days had passed.

The record also fails to show that Spohr was provided with the required notice before his non-emergency guardianship. The failure to personally serve the respondent 14 days before the guardianship hearing is jurisdictional and respondent cannot waive service. Thus the court lacked jurisdiction to appoint a permanent guardian.

The judgment was vacated.

Summary provided courtesy of Colorado Lawyer.

Bills Signed Enacting Uniform Trust Code, Creating Civil Rape Shield Law, Helping Preserve Family Units with Parents with Disabilities, and More

On Wednesday, April 25, 2018, Governor Hickenlooper signed nine bills into law. On Thursday, April 26, 2018, he signed five bills into law. To date, he has signed 183 bills and sent one bill to the Secretary of State without a signature. The bills signed Wednesday and Thursday include a bill enacting the Colorado Uniform Trust Code, a bill enacting a civil rape shield statute, a bill amending family preservation safeguards for parents with disabilities, a bill requiring free-standing emergency rooms to post certain consumer notices, and more. The bills signed Wednesday and Thursday are summarized here.

  • SB 18-071 – “Concerning an Extension of the Repeal of the State Substance Abuse Trend and Response Task Force, and, in Connection Therewith, Making an Appropriation,” by Sens. Cheri Jahn & Larry Crowder and Rep. Daneya Esgar. The state substance abuse trend and response task force is scheduled to be repealed effective July 1, 2018. The bill extends the repeal for 10 years to September 1, 2028.
  • SB 18-146 – “Concerning a Requirement that a Freestanding Emergency Department Inform a Person who is Seeking Medical Treatment about the Health Care Options that are Available to the Person, and, in Connection Therewith, Making an Appropriation,” by Sens. John Kefalas & Jim Smallwood and Reps. Lang Sias & Jonathan Singer. The bill requires a freestanding emergency department (FSED), whether operated by a hospital at a separate, off-campus location or operating independently of a hospital system, to provide any individual that enters the FSED seeking treatment a written statement of patient information, which an FSED staff member or health care provider must explain orally.
  • SB 18-154 – “Concerning a Requirement for a Local Juvenile Services Planning Committee to Devise a Plan to Manage Dually Identified Crossover Youth,” by Sen. Rhonda Fields and Rep. Joseph Salazar. The bill requires local juvenile services planning committees to devise a plan to manage dually identified crossover youth. A dually identified crossover youth is a youth involved in both the juvenile justice system and the child welfare system. The plan must contain descriptions and processes.
  • SB 18-169 – “Concerning Offenses Against Witnesses in Noncriminal Proceedings,” by Sen. Bob Gardner and Rep. Terri Carver. The clarifies that the offenses of intimidating a witness or victim and retaliation against a witness or victim apply to witnesses in criminal, civil, and administrative proceedings.
  • SB 18-180 – “Concerning the Colorado Uniform Trust Code,” by Sen. Bob Gardner and Reps. Cole Wist & Matt Gray. The bill enacts the Colorado Uniform Trust Code and repeals many sections of the Colorado Probate Code.
  • SB 18-187 – “Concerning Transferring Marijuana Fibrous Waste for the Purpose of Producing Industrial Fiber Products,” by Sens. Vicki Marble & Jack Tate and Rep. Jeni James Arndt. The bill gives the state licensing authority rule-making authority to address conditions under which a medical or retail marijuana licensee is authorized to transfer marijuana fibrous waste to a person for the purpose of producing only industrial fiber products.
  • HB 18-1104 – “Concerning Family Preservation Safeguards for Parents with Disabilities,” by Rep. Jessie Danielson and Sens. Dominick Moreno & Kent Lambert. The bill establishes that family protection safeguards for a parent or prospective parent with a disability are critical to family preservation and the best interests of the children of Colorado. These safeguards include that a parent’s disability must not serve as a basis for denial or restriction of parenting time or parental responsibilities in a domestic law proceeding, that a parent’s disability must not serve as a basis for denial of participation in a public or private adoption, or for denial of foster care or guardianship, and that the benefits of providing supportive parenting services must be considered by a court when determining parental responsibilities, parenting time, adoption placements, foster care, and guardianship.
  • HB 18-1132 – “Concerning the Amount that the Department of Corrections is Required to Reimburse a County or City and County for the Confinement and Maintenance in a Local Jail of any Person who is Sentenced to a Term of Imprisonment in a Correctional Facility,” by Rep. Dafna Michaelson Jenet and Sen. Larry Crowder. Under current law, the General Assembly establishes in its annual general appropriations bill the amount that the Department of Corrections is required to reimburse any county or city and county for a portion of the expenses and costs incurred by that county or city and county for the confinement and maintenance in a local jail of any person who is sentenced to a term of imprisonment in a correctional facility. The bill states that, to assist the General Assembly in determining such rate of reimbursement, each county and each city and county shall report to the joint budget committee the average cost of confining and maintaining persons in a local jail for more than 72 hours after each such person has been sentenced to the custody of the department.
  • HB 18-1147 – “Concerning the Continuation of the Regulation of People who Modify the Weather, and, in Connection Therewith, Implementing the Sunset Review Recommendations of the Department of Regulatory Agencies,” by Reps. Joann Ginal & Kim Ransom and Sen. Don Coram. The bill continues the regulation of people who modify the weather.
  • HB 18-1211 – “Concerning Controlling Medicaid Fraud,” by Reps. Cole Wist & Mike Foote and Sens. Irene Aguilar & Jim Smallwood. The bill establishes the medicaid fraud control unit in the department of law. The unit is responsible for investigation and prosecution of medicaid fraud and waste, as well as patient abuse, neglect, and exploitation. Prior to initiating a criminal prosecution, the unit must consult with the district attorney of the judicial district where the prosecution would be initiated.
  • HB 18-1237 – “Concerning the Continuation of the Requirements Regarding the Preparation of a Cost-Benefit Analysis as Administered by the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations Contained in the 2017 Sunset Report by the Department of Regulatory Agencies,” by Reps. Tracy Kraft-Tharp & Kevin Van Winkle and Sen. Tim Neville. The bill implements the recommendations of the Department of Regulatory Agencies’ sunset review and report on requirements and procedures regarding the preparation of a cost-benefit analysis.
  • HB 18-1243 – “Concerning Enactment of a Civil Rape Shield Law,” by Reps. Mike Foote & Cole Wist and Sens. Don Coram & Rhonda Fields. Under Colorado criminal law there is a rape shield law that presumes that evidence of a victim’s sexual conduct is irrelevant and not admissible except for evidence of the victim’s prior or subsequent sexual conduct with the defendant or evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts were or were not committed by the defendant. The bill creates a similar presumption in a civil proceeding involving alleged sexual misconduct. If a party wants to introduce sexual conduct evidence, it must file a confidential motion with the court at least 63 days prior to trial. Prior to ruling on the motion, the court shall conduct an in camera hearing and allow the parties and alleged victim to attend and be heard.
  • HB 18-1275 – “Concerning the Repeal of the Craig Hospital License Plate Donation Requirement,” by Rep. Jeff Bridges and Sen. Daniel Kagan. Current law requires an applicant to make a donation to Craig Hospital in order to be issued a special Craig Hospital license plate. The bill repeals the $20 donation requirement.
  • HB 18-1282 – “Concerning a Requirement that a Health Care Provider Include Certain Identifying Information on all Claims for Reimbursement for Health Care Services,” by Reps. Susan Lontine & Lang Sias and Sens. Jim Smallwood & John Kefalas. The bill requires an off-campus location of a hospital to apply for, obtain, and use on claims for reimbursement for health care services provided at the off-campus location a unique national provider identifier, commonly referred to as NPI. The off-campus location’s NPI must be used on all claims related to health care services provided at that location, regardless of whether the claim is filed through the hospital’s central billing or claims department or through a health care clearinghouse. It also requires all medicaid providers that are entities to obtain and use a unique NPI for each site at which they deliver services and for each provider type that the department of health care policy and financing has specified.

For a complete list of Governor Hickenlooper’s 2018 legislative decisions, click here.

Colorado Supreme Court: Trial Court Had Jurisdiction to Impose Constructive Trust where Sister Misspent Multi-party Funds

The Colorado Supreme Court issued its opinion in Sandstead-Corona v. Sandstead on Monday, April 9, 2018.

Implied Trusts—Probate Jurisdiction—C.R.S. § 15-10-501—No-Contest Clause.

This case raised multiple issues arising from a dispute between two sisters concerning their mother’s estate and funds contained in a multi-party account alleged to be non-probate assets. The supreme court first held that pursuant to C.R.S. § 13-9-103(3)(b), the trial court had jurisdiction to resolve the dispute over the funds in the multi-party account and to impose a constructive trust if appropriate because the facts presented a question as to whether the funds were part of mother’s estate. The court further concluded that the trial court properly imposed a constructive trust over these funds because the sister who was the surviving signatory on the multi-party account was in a confidential relationship with her mother and her sister, and she abused that relationship when she misspent the funds. Next, the court held that because an implied trust is included in the fiduciary oversight statute’s definition of an “estate,” the trial court properly surcharged the sister who was the signatory on the multi-party  account because she had misused the funds in the implied trust. Finally, the court found that although a no-contest clause that was contained in mother’s revocable trust was incorporated by reference into her will, by its plain language, that clause applied only to actions contesting the trust, not challenges to the will. Accordingly, the court held that the trial court erred in enforcing the no-contest clause against the sister who challenged the will. The court of appeals’ judgment was reversed and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.