Estate of Thomas Russell Davies ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 4, 2022
2022COA90No. 21CA0295, Estate of Davies — Probate — Wills — Colorado
Uniform Guardianship and Protective Proceedings Act —
Protection of Property of Protected Person — Required Court
Approval
In the proceedings below, the district court invalidated the will
of the decedent, who died while under a conservatorship. The court
concluded that the decedent’s conservator had made the will
without complying with section 15-14-411(1)(g), C.R.S. 2021, which
says a conservator may “[m]ake, amend, or revoke the protected
person’s will” only after receiving a court’s approval and giving
notice to “interested persons.”
Addressing a novel issue, a division of the court of appeals
concludes that section 15-14-411(1)(g) applies where a conservator
makes the will as contemplated by section 15-14-411(2) and section
15-11-502, C.R.S. 2021 — for instance, where the conservator
executes the will in the presence of two witnesses who sign it. But
where, as here, the person subject to a conservatorship executes
their own will in compliance with section 15-11-502, that person
makes the will, and section 15-14-411(1)(g) does not apply.
Accordingly, the division reverses the judgment and remands for
further proceedings.
COLORADO COURT OF APPEALS 2022COA90Court of Appeals No. 21CA0295
Boulder County District Court No. 18PR30655
Honorable Thomas F. Mulvahill, Judge
Honorable Bruce Langer, Judge
In re the Estate of Thomas Russell Davies, deceased.
Phillip Wong, Stephanie Ryno, Jason DeHerrera, and Tricinia DeHerrera,
Appellants,
v.
Gary Scarpella,
Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE NAVARRO
Lipinsky and Kuhn, JJ., concur
Announced August 4, 2022
Treece Aflrey Musat, P.C., Reza D. Rismani, Carol L. Thomson, Denver,
Colorado, for Appellant Phillip Wong
Stephanie Ryno, Pro Se
Jason DeHerrera, Pro Se
Tricinia DeHerrera, Pro Se
Hurth Sisk & Blakemore, LLP, Jessica H. Catlin, Jonathan Leinheardt,
Boulder, Colorado; Ogborn Mihm, LLP, James E. Fogg, Denver, Colorado, for
Appellee
¶1 In the proceedings below, the district court invalidated the will
of Thomas Russell Davies, who died while under a conservatorship.
The court concluded that Davies’s conservator, Phillip Wong, had
made the will without complying with section 15-14-411(1)(g),
C.R.S. 2021, which says a conservator may “[m]ake, amend, or
revoke the protected person’s will” only after receiving a court’s
approval and giving notice to “interested persons.” Appealing the
judgment, Wong and the devisees under the will (collectively, the
appellants) argue that section 15-14-411(1)(g) did not apply here
because, although Wong drafted the will for Davies pursuant to
their conversations on the matter, Davies executed it. In other
words, Wong says Davies made the will, not Wong.
¶2 Addressing a novel issue under section 15-14-411(1)(g), we
agree with Wong. Section 15-14-411(1)(g) applies where a
conservator makes the will as contemplated by section 15-14-411(2)
and section 15-11-502, C.R.S. 2021 — for instance, where the
conservator executes the will in the presence of two witnesses who
sign it. But where, as here, the protected person executes the will
in compliance with section 15-11-502, the protected person makes
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the will, and section 15-14-411(1)(g) does not apply.1 Accordingly,
we reverse the judgment and remand for further proceedings.
I. Factual and Procedural History
¶3 The pertinent facts are not in dispute.
¶4 In March 2017, the district court appointed Wong, an estate
planning attorney, as Davies’s conservator. Sometime later, and as
a result of conservations with Davies about his estate, Wong
prepared the will at issue. On February 27, 2018, Davies signed
the will in the presence of two witnesses (including Wong) who also
signed it, as well as a notary public. Wong did not seek court
approval before preparing the will. The will left Davies’s estate to
the devisees, Stephanie Ryno and Jason and Tricinia DeHerrera,
who were his friends and caregivers.
¶5 Davies died on October 23, 2018. On October 30, Wong
applied for informal probate of the will and asked to be appointed
personal representative of Davies’s estate. The district court
granted the application and Wong’s request. In April 2019, Gary
1 We note that whether the protected person made the will is a
different question from whether the protected person possessed
testamentary capacity or was affected by undue influence. We
remand for resolution of the latter issues as raised below.
2
Scarpella, Davies’s cousin and one of his heirs,2 petitioned to set
aside informal probate of the will and for adjudication of intestacy,
as well as for other relief. Scarpella alleged that Davies’s will had
been procured by undue influence. The court set the matter for
trial on that question, among others.
¶6 Before trial, however, Scarpella moved for summary judgment
on the ground that Davies’s will was invalid because Wong, in his
capacity as conservator for Davies, had made the will without
obtaining court approval as required by section 15-14-411(1)(g).
Wong responded that section 15-14-411(1)(g) was inapplicable. The
court agreed with Scarpella and granted summary judgment
declaring the will “without legal force and effect,” finding that
Davies had died without a will, and removing Wong as personal
representative.
¶7 Scarpella then filed a motion for surcharge against Wong,
arguing that Wong breached his fiduciary duties to Davies by
making the will without court approval. Before the motion was
resolved, the parties filed a stipulation asking for certification of the
2 “Heirs” are persons entitled to the decedent’s property under the
statutes of intestate succession. § 15-10-201(24), C.R.S. 2021.
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summary judgment order as final pursuant to C.R.C.P. 54(b) and a
stay of the surcharge action pending appeal, both of which the
court granted.
II. Analysis
¶8 The appellants argue that the district court erred by
concluding that Davies’s will was invalid due to Wong’s failure to
comply with section 15-14-411(1)(g) (i.e., to obtain court approval
before making the will as Davies’s conservator). According to the
appellants, such approval was unnecessary because Wong merely
drafted the will and Davies himself made the will. We agree.
A. Preservation
¶9 Scarpella says the appellants failed to preserve their argument
that the phrase “[m]ake . . . [a] will” in section 15-14-411(1)(g) does
not encompass merely drafting a protected person’s will, as opposed
to executing the will on the protected person’s behalf. We are not
convinced.
¶ 10 In his response to the summary judgment motion, Wong
maintained that section 15-14-411(1)(g) did not apply here for
various reasons, including the fact that Davies “reviewed the Will
and signed on his own. Mr. Wong did not sign the Will on behalf of
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[Davies] because [Davies] had the necessary testamentary capacity
to review and execute the Will on his own.” While the appellants
certainly flesh out this argument more thoroughly on appeal, we are
satisfied that they preserved in the district court their claim that
section 15-14-411(1)(g) is inapplicable where the conservator drafts,
but the protected person executes, the will. See Curry v. Zag Built
LLC, 2018 COA 66, ¶¶ 62-64 (concluding that the appellant
preserved their appellate argument by raising the issue, “albeit
obliquely and fleetingly, in its summary judgment motion”).
B. Standard of Review and General Principles
¶ 11 We review de novo an order granting summary judgment.
GEICO Cas. Co. v. Collins, 2016 COA 30M, ¶ 17. A court may not
grant summary judgment except on a clear showing that no
genuine issue exists as to any material fact and that the moving
party is entitled to judgment as a matter of law. Rome v. Mandel,
2016 COA 192M, ¶ 16; C.R.C.P. 56(c).
¶ 12 Statutory construction also presents a legal question that we
review de novo. See In re Estate of Colby, 2021 COA 31, ¶ 12. Our
task in construing a statute is to ascertain and give effect to the
General Assembly’s intent. Id. at ¶ 13. In determining legislative
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intent, our review begins with the statute’s plain language. Id. We
look to the statutory design as a whole, giving effect to the language
of each provision and harmonizing apparent conflicts where
possible. Id. We read statutory words and phrases in context and
construe them according to their common usage. Id. If the statute
is clear and unambiguous as written, we look no further, and we
apply the statute as written. Id.
¶ 13 This case requires us to consider sections of the Colorado
Probate Code, §§ 15-10-101 to 15-17-103, C.R.S. 2021, including
the Colorado Uniform Guardianship and Protective Proceedings Act,
§§ 15-14-101 to 15-14-434, C.R.S. 2021. The probate code must be
construed liberally to promote a speedy and efficient system for
settling a decedent’s estate and making distribution to the
decedent’s successors. § 15-10-102(2)(c), C.R.S. 2021; Colby, ¶ 14.
C. Section 15-14-411(1)(g) Did Not Apply Here
¶ 14 Section 15-14-411(1) lists actions a conservator may take
“after notice to interested persons and upon express authorization
of the court.” As noted, if a conservator gives such notice and
obtains such authorization, a conservator may “[m]ake, amend, or
revoke the protected person’s will.” § 15-14-411(1)(g). Section 15-
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14-411(2) provides that “[a] conservator, in making, amending, or
revoking the protected person’s will, shall comply with section 15-
11-502 or 15-11-507[, C.R.S. 2021].” Section 15-11-502 sets forth
the requirements for making a will, while section 15-11-507
addresses revocation of a will.
¶ 15 Therefore, to understand what it means to “make” a will, we
must look to section 15-11-502. As pertinent here, section 15-11-
502 provides that the will must be (1) in writing; (2) signed by the
testator; and (3) either signed by at least two people who witnessed
the testator’s signing of the will or acknowledged by the testator
before a notary public. § 15-11-502(1)(a)-(c). Viewing these
requirements in light of section 15-14-411(2), we conclude that,
where a conservator makes a will on behalf of a protected person,
the conservator fulfills the functions normally performed by the
testator — including execution of the will.3
3 Section 15-14-411(3), C.R.S. 2021, provides that the court, in
approving a conservator’s exercise of the power to make a will,
“shall consider primarily the decision that the protected person
would have made, to the extent that the decision can be
ascertained. To the extent the decision cannot be ascertained, the
court shall consider the best interest of the protected person.”
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¶ 16 Bolstering our conclusion is section 411(b) of the 1997
Uniform Guardianship and Protective Proceedings Act (UGPPA), on
which section 15-14-411(2) is based. See In re Estate of Runyon,
2014 COA 181, ¶ 12 (finding persuasive a comment to a provision
of the UGPPA adopted in Colorado). Section 411(b) says a
“conservator, in making, amending, or revoking the protected
person’s will, shall comply with [the State’s statute for executing
wills].” UGPPA § 411 (amended 1997/1998), 8 pt. 3 U.L.A. 70-71
(2014) (emphasis added) (bracketed language in the original).
Likewise, the comment to section 411 explains that, “[i]n subsection
(b), the enacting jurisdiction should insert the citation for its statute
on the execution requirements for ordinary attested wills.” UGPPA
§ 411 cmt. (emphasis added). Our legislature did so in section 15-
14-411(2) by including references to section 15-11-502. See also
Copper Mountain, Inc. v. Poma of Am., Inc., 890 P.2d 100, 106 (Colo.
1995) (“Without more, we accept the intent of the drafters of the
uniform law as that of our own General Assembly by its verbatim
enactment of the uniform act provision.”).
¶ 17 Furthermore, the ordinary meaning of “make” in the context of
section 15-14-411(1)(g) supports our view that it requires executing
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the will. To “make” means “[t]o legally perform, as by executing,
signing, or delivering (a document) . . . .” Black’s Law Dictionary
1144 (11th ed. 2019) (emphasis added). Thus, to “make a will”
means to execute a will in compliance with applicable legal criteria.
¶ 18 As a result, the requirement in section 15-14-411(1)(g) that a
conservator obtain court approval before making a protected
person’s will applies when the conservator executes the will in
compliance with section 15-11-502. Conversely, when the
protected person executes the will in compliance with section 15-
11-502, section 15-14-411(1)(g) is not triggered, even if the
conservator drafted the will. To conclude otherwise would add
words (such as “draft”) to the statute, which we may not do. See
Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 12.
¶ 19 Our conclusion that a protected person may make a will in
compliance with section 15-11-502 without prior court
authorization recognizes that “findings that warrant appointment of
a conservator do not equate to a determination of testamentary
incapacity.” In re Estate of Gallavan, 89 P.3d 521, 523 (Colo. App.
2004). That is, “[t]he appointment of a conservator . . . is not a
determination of incapacity of the protected person.” § 15-14-
9
409(4), C.R.S. 2021; see Gallavan, 89 P.3d at 523 (“[D]ecedent had
testamentary capacity and, as a result, could bequeath assets to
others . . . . Because she did not transfer any assets during her
lifetime, the conservatorship was not implicated.”); see also Thomas
A. Rodriguez & Brooke W. Brestel, Conservator-Created Wills: Issues
in Litigation, 44 Colo. Law. 53, 56 (Aug. 2015) (“[E]ven if a
conservator is appointed, the protected person may not need a
conservator to execute a will on his or her behalf.”); cf. Breeden v.
Stone, 992 P.2d 1167, 1170 (Colo. 2000) (reiterating the principle
that “[a] testator has a fundamental right to ‘dispose of his property
as he pleases.’”) (citation omitted).
¶ 20 Applying our reasoning to this case, we conclude that the
district court erred by invalidating Davies’s will on the grounds that
Wong drafted it without obtaining court approval. It is undisputed
that Davies’s will was (1) in writing; (2) signed by Davies in the
presence of a notary public; and (3) signed by two people who
witnessed Davies signing the will. Therefore, Davies made the will
in compliance with section 15-11-502, and section 15-14-411(1)(g)
does not apply.
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¶ 21 Arguing to the contrary, Scarpella says that interpreting
section 15-14-411(1)(g) to apply only if the conservator executes the
will — but not if the protected person does so — would result in “no
opportunity for the court to review the Will for capacity or undue
influence.” But that is not so. Challenges to a will based on the
testator’s lack of testamentary capacity or based on undue
influence are distinct from the challenge we address. Nothing in
our holding would prevent Scarpella from continuing to pursue his
claim that Davies’s will was procured by undue influence.
¶ 22 In sum, because Wong did not make the will, it was not invalid
for failure to comply with section 15-14-411(1)(g).4 So we reverse
the summary judgment.
III. Other Contentions
¶ 23 Given our disposition, we need not reach the appellants’ other
contentions of error pertaining to the summary judgment order.
4 To the extent Scarpella argues that Wong, by drafting the will,
exceeded the authority granted to a conservator in section 15-14-
425, C.R.S. 2021, we do not address the argument because it was
not raised in the summary judgment proceedings and was not
resolved by the district court. See GEICO Cas. Co. v. Collins, 2016
COA 30M, ¶ 41 n.7 (noting that, on review of a summary judgment
ruling, we do not consider arguments and evidence that were not
presented to the district court).
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IV. Conclusion
¶ 24 The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
JUDGE LIPINSKY and JUDGE KUHN concur.
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