Probate Case Objection Strategies

Objection to a probate case

I want to get suggestions on response I am submitting to court

My sister passed and made me excertor of her estate in her will. Ex husband is objecting saying Will is fake

*. Admit. *. Deny. Sandra never received service of these documents. *. Admit. *. Admit. *. Admit. Sandra was acting pro se at the time of the filing and was not acting out of bad faith as the objection hints. *. Admit. *. Admit. *. Admit. *. Admit. Sandra’s second amendment was filed to correct the date of the will in question. *. Admit. *. Admit. *. Admit. *. Admit only that the Testamentary Affidavit was not notarized. *. Admit that Joe contests the validity of the will, but denies the rest of the statement. *. Cannot admit or deny due to personal lack of knowledge. *. Cannot admit or deny due to personal lack of knowledge. *. Cannot admit or deny due to personal lack of knowledge. *. Deny the handwriting expert’s conclusion that the will is “nongenuine.”cc *. Deny.

Argument

C.R.S. §*-*-*(*)(a) through (c) states that a will shall be in writing, be signed by the testator, and shall be either signed by at least two individuals, or acknowledged by the testator before a notary public (emphasis added). Here, the Decedent’s will (the “Will”) meets the requirements of a valid will under Section *-*-*: It was in writing, it was signed by the Decedent, and two individuals, Belinda Cox and Jeff Cox, who witnessed the will. Joe has admitted that the Coxes witnessed the will in his Paragraphf * to his Objection.

I am sending full argument I wrote and then want your feedback

​Joe argues that Sandra is “inappropriate” to serve as Personal Representative in this matter based upon his assertion that the Will is a forgery. He further accuses Sandra of committing “unlawful and unethical actions in this matter.” (See paragraph * of Objection). Sandra takes offense to this accusation and believes that it borders on being vexatious. ​Further, Joe’s actions in filing his Petition to be appointed Personal Representative are questionable. He did not bother to ask the Decedent’s immediate family members if the Decedent had left a will before he filed a Petition for Intestacy. In addition, Joe and his counsel most likely understood that Joe had “no standing as an interested person to file [the] Petition or be appointed as Personal Representative,” as the Court stated in its Order denying Joe’s Petition. (See *-*-* Court Order denying Joe’s Petition for Intestacy).

Joe has asked the Court “to order an award of attorney’s fees and costs against the Petitioner and in favor of Mr. Garcia for the fees and costs incurred by him in objecting to the Petition.” Sandra asserts that Joe has no legal basis for such a request. Under C.R.S. § *-*-*(*), a court “shall assess attorney fees” if, upon a party’s motion or if initiated by the court itself, the court finds that an attorney or party “brought or defended an action, or any part of an action, that lacked substantial justification or that the action, or any part of the action, was interposed for delay or harassment or if the court finds that an attorney . . . or party unnecessarily expanded the proceeding by other improper conduct . . . .”

claim or defense “lacks substantial justification,” as the basis for an award of attorney fees, when it is substantially frivolous, groundless, or vexatious.  In re Marriage of Roddy and Betherum, * P.3d *, * (Colo. App. *). See also C.R.S. § *-*-* (general assembly sets for provision for recovery of attorney fees when actions in question are “determined to have been substantially frivolous, substantially groundless, or substantially vexatious”). The terms “frivolous” and “groundless” in the Colorado attorney fees statute should not be defined in the light of the common law, but should be defined in light of common usage to mean “of little weight or importance having no basis in law or fact” and as “lacking cause or reason for support.”  Morton v. Allied Stores Corp., * F.R.D. *, * (D. Colorado *).

A claim is “vexatious,” as the basis for an award of attorney fees, if it is “brought or maintained in bad faith,” and in this context, “’bad faith’ may include conduct that is arbitrary, abusive, stubbornly litigious, or disrespectful of the truth.”  In re Marriage of Roddy and Betherum, * P.3d at *.

Based upon the definitions provided by the Colorado statutes and case law, Joe has failed to produce any evidence that justifies the awarding of attorney fees and costs against Sandra. Sandra has filed a Petition for Formal Probate of Will and Formal Appointment of Personal Representative based upon the Decedent’s Last Will and Testament, which was signed by the Decedent and witnessed by two Colorado residents. The Will named Sandra as the Decedent’s Personal Representative. Joe has not come close to meeting the standard of proving that Sandra’s actions have been substantially frivolous, substantially groundless, or substantially vexatious.

On the other hand, it is Joe’s actions that should be scrutinized for vexatiousness. Joe first attempted to open intestate proceedings without bothering to ask Sandra if the Decedent had left a will. This Court denied Joe’s Petition to open probate because he has no standing to file the petition. When Sandra filed her Petition to open probate, Joe objected. Consequently, additional attorney fees and costs were incurred because a Motion for Appointment for a Special Administrator had to be filed to give someone authority to protect the Decedent’s residence and property inside of it. After the Court granted the motion to appoint a special administrator, Joe then filed a Forthwith Motion to set aside Sandra’s Appointment as Special Administrator.