23CA2233 Estate of Huffer 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2233 El Paso County District Court No. 21PR31440 Honorable Vincent N. Rahaman, Magistrate
In re the Estate of Karin D. Huffer, deceased.
Jason Huffer,
Appellant,
v.
Jordan Huffer,
Appellee.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 27, 2025
Semler & Associates, P.C., R. Parker Semler, Andrew Oh-Willeke, James L. French, Denver, Colorado, for Appellant
Olsen & Mahoney, LLP, Andrea N. Mahoney, Glendale, Colorado; Brunette Law Office, LLC, Stephen A. Brunette, Colorado Springs, Colorado, for Appellee ¶1 In this probate case, Jason Huffer (Jason) appeals the probate
court’s order that granted the petition of Jordan Huffer (Jordan) to
invalidate the trust of decedent, Karin Huffer (Karin), on the
grounds that Jason unduly influenced the amended trust.1 We
affirm.
I. Background
¶2 Viewed in the light most favorable to the probate court’s
ruling, the evidence presented showed the following facts.
¶3 Jason and Jordan are half-brothers and Karin’s only children.
In 1999, Karin was diagnosed with breast cancer, which recurred
several times over the following two decades. Around 2007, Karin
moved from Florida to Colorado Springs. Sometime between 2012
and 2014, Jason and family friend Jorge Medina2 began living with
Karin in her Colorado Springs home. Jordan remained in Florida.
1 Because both parties and the decedent share the same surname,
we refer to them by their first names throughout this opinion. We mean no disrespect by doing so. 2 As the probate court described it, Medina “initially was a therapy
client of Karin’s and that relationship developed into a personal/business partner setup where Karin provided therapy to [Medina], while he helped Karin with [her business] and household duties.”
1 ¶4 Jason “essentially stopped working in 2014 and devoted the
majority of his time to helping [Karin] with [her business].” Jordan,
meanwhile, “was never really involved in the running/operations of
the entity.”
¶5 In August 2017, Karin executed a trust (the 2017 trust) that
equally divided her estate between Jason and Jordan — except for
her business, which was to go to Jason. In the spring of 2018,
however, Karin contacted her attorney, Jack McQuitty, and asked
to amend her trust to give most of her estate to Jason while leaving
an individual retirement account to Jordan.3 In the ensuing
months, Karin and McQuitty exchanged emails and met in person
multiple times to discuss changes to the trust, with Jason
transporting Karin to some of these meetings. Karin explained to
McQuitty in one August 2018 email that she wished to compensate
Jason for caring for her but also said that she “[would] not
disinherit [Jordan] even though he has not been involved in family
or business and is territorial about his properties and businesses.”
3 Jordan never received this account because Karin never replaced
Jason with Jordan as the beneficiary.
2 During this time, Karin also informed Jordan that she was working
with McQuitty to alter her estate plan.
¶6 By October 2018, Karin’s cancer had metastasized to other
organs, and she was hospitalized for the final time. Karin’s medical
team determined during this hospitalization that treatment was no
longer an option. She returned to her home where she died on
October 24.
¶7 During her hospitalization, Karin executed a new trust (the
2018 trust) that amended the 2017 trust and “essentially gave the
bulk of her estate to Jason.” Between October 14 and October 17,
as Jason was present in Karin’s hospital room, “Karin and McQuitty
exchanged approximately 20 emails and three different versions of
the restated trust,” with Jason alone copied on the emails. At that
time, Karin was experiencing dyspnea, asthenia, anorexia, and
depression but was not taking mind-altering medications. In
response to Karin’s indecisiveness during these email exchanges,
McQuitty consistently requested specific instructions from Karin in
order “to make things crystal clear re: percentages or we will see
your entire estate split on litigation expenses.” McQuitty also
3 offered to come to Karin’s home to be present for her signing of the
2018 trust.
¶8 While still hospitalized, Karin called Jordan to inform him
about her prognosis and that she would be returning home to die.
Jordan immediately drove from Florida to Colorado Springs, where
he stayed at Karin’s home until shortly after her death.
¶9 Jordan arrived in Colorado Springs on October 17. After
visiting Karin at the hospital that day, Jordan and Medina left to
prepare Karin’s home for her discharge from the hospital. After
Jordan and Medina left, Jason (against McQuitty’s thorough and
specific advice to Karin about how to execute her amended estate
plan) presented the 2018 trust to Karin. Jason was joined by
attorney (and, according to some testimony, Jason’s friend) Bill
Rudge and notary Suzanne Smith, who witnessed Karin sign the
2018 trust and notarized the document. Jason, Rudge, and Smith
left Karin’s hospital room to allow her to review the document in
private but did not go over the document’s contents with her.
Smith did, however, ask Karin if she wished to sign the document
and Karin responded affirmatively.
4 ¶ 10 Jordan did not learn of the 2018 trust until McQuitty informed
him about an hour into Jordan’s drive back to Florida following
Karin’s death. Jordan subsequently initiated the probate
proceedings that are now before us on appeal. As relevant to this
appeal, Jordan sought to invalidate the 2018 trust and restore the
2017 trust.
¶ 11 The probate court held hearings in March, June, and July of
2023. Several witnesses, including Jason and Jordan, testified
about Karin’s testamentary capacity and the issue of undue
influence. In November 2023, the probate court issued a lengthy
written order concluding that Jason exerted undue influence over
Karin and granting Jordan’s petition to invalidate the amended
trust and reinstate the 2017 trust. The probate court’s order also
made numerous factual findings, including credibility
determinations.
¶ 12 Jason now appeals the probate court’s order finding undue
influence.
5 II. Expert Testimony
¶ 13 Jason first challenges the probate court’s admission of expert
testimony from Sheri Gibson and the probate court’s reliance upon
that testimony to reach its conclusions. We discern no error.
A. Standard of Review and Applicable Law
¶ 14 CRE 702 governs the admissibility of expert testimony. People
v. Shreck, 22 P.3d 68, 70 (Colo. 2001). Under CRE 702, a witness
may be qualified to offer expert testimony based on any of five
factors: knowledge, skill, experience, training, or education.
Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681, 690 (Colo.
1998). “The initial determination of whether a witness is
sufficiently qualified to render an expert opinion helpful to the [fact
finder] is left to the sound discretion of the trial court, and may not
be disturbed ‘without a clear showing of an abuse of discretion.’”
Id. (quoting White v. People, 486 P.2d 4, 6 (Colo. 1971)). A trial
court abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair. Id.
¶ 15 In determining admissibility of expert testimony, courts
consider whether it is reliable and relevant. Shreck, 22 P.3d at 70.
Such a determination includes “(1) the reliability of the scientific
6 principles, (2) the qualifications of the witness, and (3) the
usefulness of the testimony to the [fact finder].” Id. The proposed
testimony must also comply with CRE 403, which allows exclusion
of relevant evidence whose probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, waste of time, or
cumulative presentation of evidence. Shreck, 22 P.3d at 70.
¶ 16 Expert testimony is reliable if the scientific principles
underlying the testimony are reasonably reliable and the witness is
qualified to opine on those principles. Id. at 77; People v. Martinez,
74 P.3d 316, 321 (Colo. 2003). Testimony is speculative, and thus
not reliable under CRE 702, if the opinion has no sound scientific
basis. People v. Ramirez, 155 P.3d 371, 378-79 (Colo. 2007). In
determining whether expert testimony is reliable, it is not enough
for a court to simply conclude that the testimony is “speculative”;
instead, the court must consider the expert’s qualifications and the
scientific principles underlying the testimony. Id. at 379.
¶ 17 The court’s inquiry should be broad, considering the totality of
the circumstances. Shreck, 22 P.3d at 70. “The Colorado Supreme
Court in Shreck established a liberal standard of admissibility that
7 would be balanced by ‘[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.’”
Est. of Ford v. Eicher, 220 P.3d 939, 944 (Colo. App. 2008) (quoting
Shreck, 22 P.3d at 78).
B. Additional Facts
¶ 18 In January 2023, Gibson prepared a report for this litigation
detailing her “retrospective evaluation” that was used “to reach a
conclusion of the psycho-legal question of whether or not undue
influence was present in the current case.” At the conclusion of her
report, Gibson summarized her opinion as follows:
The facts presented offered significant indications to support [Karin]’s susceptibility to the influence of others and that furthermore, she was, in fact, being unduly influenced to amend her trust in a significant way that deviated from her original trust in 2017, awarding her son, Jason, almost her entire estate to the exclusion of her other son, Jordan, who was essentially disinherited. The lack of transparency in communication, her increased dependency on others, feelings of indebtedness, and evidence of indecisiveness in her decisional process offers strong support for my findings of undue influence. It is also my opinion that [Karin] had diminished capacity on the day of executing the Amended and Restated Trust document due to a debilitating and terminal health condition
8 requiring pharmacological treatment for pain and marked depressed mood.
¶ 19 In a written motion, Jason moved to exclude Gibson as an
expert, arguing that she was unqualified, her opinions were not
sufficiently reliable to qualify for admission under CRE 702, and
they would not be helpful to the fact finder because they did
“nothing more than summarize evidence and weigh its credibility.”
Jason did not request a Shreck hearing.
¶ 20 At the outset of the hearing on the merits of Jordan’s claims,
the probate court acknowledged that Gibson’s testimony was
subject to CRE 702, CRE 703, and CRE 403 as those rules were
applied in Shreck and Ramirez. During a lengthy discussion
regarding the admissibility and scope of Gibson’s proposed
testimony, the court noted that it had read the parties’ briefing and
done some of its own research on the “issue of undue influence.”
And during the voir dire at the beginning of Gibson’s testimony, the
court explored her methodology for retrospectively assessing undue
influence — confirming that the methodology she applied was peer
reviewed and widely recognized. The court reserved judgment on
how much weight it would give Gibson’s testimony, but it found
9 that she was qualified to testify as an expert in the areas of
geropsychology and neuropsychology and to give her opinion on
undue influence and capacity.
¶ 21 Gibson testified about the report she had prepared and
described the bases for her conclusion that Karin “was highly
susceptible to undue influence.” Specifically, Gibson emphasized
the secrecy and urgency surrounding the 2018 trust, Jason’s
contradicted deposition testimony about being present at the
hospital when Karin signed the document, the lack of independent
confirmation with Karin that she understood the document she was
signing, and the 2018 trust’s deviation from her original estate
plan.
C. Analysis
1. Reliability
¶ 22 As we understand it, the main thrust of Jason’s argument is
that Gibson’s methodology was not reliable enough to qualify her as
an expert under CRE 702. He asserts in particular that Gibson’s
methodology lacked sufficiently supportive professional literature
and scientific evidence, and that she relied on models that are not
directly applicable to situations in which the assessed individual is
10 dead. But as we have already noted, the court confirmed during
voir dire that Gibson’s methodology did rely on peer-reviewed
studies and applied widely recognized guidelines, included those in
the American Bar Association and American Psychological
Association’s Assessment of Older Adults with Diminished Capacity:
A Handbook for Psychologists (2008). While Jason argues that
these sources — and thus Gibson’s opinions — were not supported
by enough “empirical data” to render them sufficiently reliable for
admission under CRE 702, we cannot conclude that the probate
court abused its broad discretion by concluding otherwise. Indeed,
the court actively and thoughtfully participated in Gibson’s voir dire
with the clear goal of ensuring that her methodology satisfied
Shreck’s requirements, and after doing so it correctly applied
Colorado’s liberal standard of admissibility for expert testimony.
See Shreck, 22 P.3d at 78.
¶ 23 Based on the foregoing, we conclude that the probate court
satisfied its gatekeeping function and appropriately determined that
Gibson’s opinions were not “junk science.” See Ford, 220 P.3d at
942 (“The purpose of a CRE 702 inquiry is to determine whether the
proffered scientific evidence is reliable and relevant, and for the trial
11 court — acting as a gatekeeper — to prevent the admission of ‘junk
science.’”). Moreover, the probate court, acting as fact finder,
determined the weight of Gibson’s testimony only after she was
subjected to vigorous cross-examination and the court had the
opportunity to consider and weigh the contrary evidence. See
Shreck, 22 P.3d at 78 (noting that any concerns that invalid
scientific assertions will be admitted under Rule 702’s liberal
standard are mitigated by “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof ” (quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 596 (1993))). In short, nothing about the probate court’s
decision to admit Gibson’s testimony was manifestly erroneous, and
it therefore did not abuse its broad discretion to determine the
admissibility of that testimony. See Salazar v. Am. Sterilizer Co., 5
P.3d 357, 366 (Colo. App. 2000) (absent a showing of an abuse of
discretion, a trial court’s decision to allow a witness to testify as an
expert will not be disturbed on appeal).
2. Remaining Arguments
¶ 24 Jason contends that a model that Gibson utilized for her
report (the SCAM model) impermissibly “relies upon conflicting
12 California law” andwas in any event “inapplicable to a fact pattern
involving a person lacking cognitive impairment who is not able to
share her subjective story.” Based on our review of the record, we
are not entirely convinced that either argument was adequately
preserved.4 See Rinker v. Colina-Lee, 2019 COA 45, ¶ 22. In any
event, however, we are not persuaded that these arguments bear on
the admissibility of Gibson’s opinions under CRE 702. Instead,
they go to the weight of her testimony, which is the sole province of
the fact finder. See Owners Ins. Co. v. Dakota Station II Condo.
Ass’n, 2021 COA 114, ¶ 50.
¶ 25 Jason also makes the conclusory assertion that “Gibson
improperly engaged in racial and gender profiling.” This is an
undeveloped argument that we decline to address. See People v.
Liggett, 2021 COA 51, ¶ 53 (we do not address undeveloped
4 For example, referencing the SCAM model, Jason’s motion to
exclude Gibson’s testimony under CRE 702 asserted that her report made “[a] mere reference to an acronym from the author of a paper whose reliability and scientific basis are not validated or discussed in the report” and argued that, as a result, Gibson’s testimony lacked a “sound scientific basis.” This differs from the arguments that he raises on appeal. See Core-Mark Midcontinent Inc. v. Sonitrol Corp., 2016 COA 22, ¶ 26 (“To preserve an argument as to why a particular decision is appropriate, a party must timely raise that specific argument.”).
13 arguments), aff’d, 2023 CO 22; see also Castillo v. Koppes-Conway,
148 P.3d 289, 291 (Colo. App. 2006) (“Our Court will not search
through briefs to discover what errors are relied on, and then
search through the record for supporting evidence. It is the task of
counsel to inform us, as required by our rules, both as to the
specific errors relied on and the grounds and supporting facts and
authorities therefor.” (quoting Mauldin v. Lowery, 255 P.2d 976, 977
(1953))).
¶ 26 Lastly, Jason asserts that the probate court abused its
discretion by impermissibly applying California law to reach its
conclusions. We find no reliance on California law in the probate
court’s order. To the extent that Jason’s argument can be
understood as alleging error in the probate court’s reliance on
Gibson’s expert testimony because that testimony was itself reliant
upon California law, this argument is undeveloped and, in any
event, Gibson’s testimony was just one among several pieces of
evidence that the probate court correctly weighed in reaching its
conclusions.
14 III. Undue Influence
¶ 27 Jason also contends that the probate court erred when it
concluded that there was undue influence because it applied an
incorrect legal standard and did not follow Colorado law. We
disagree.
¶ 28 It is for the trial court, as trier of fact, to determine the
sufficiency, probative effect, and weight of the evidence, and to
assess the credibility of witnesses. In re Estate of Romero, 126 P.3d
228, 231 (Colo. App. 2005). We will neither reweigh witness
testimony nor reevaluate the evidence. Id. Moreover, we view the
evidence in a light most favorable to the prevailing party, and we
give great deference to the fact finder’s determinations. See In re
Estate of Foiles, 2014 COA 104, ¶ 19.
¶ 29 A claim of undue influence presents a mixed question of fact
and law. See Krueger v. Ary, 205 P.3d 1150, 1156 (Colo. 2009).
Whether a presumption of undue influence applies presents a
question of law, but the ultimate conclusion of whether undue
influence has been established presents a question of fact. Id. We
review a court’s factual findings for clear error and its legal
15 conclusions de novo. Sandstead-Corona v. Sandstead, 2018 CO 26,
¶ 37. We will not upset the trial court’s factual findings unless they
are without substantial support in the record. In re Estate of
Ramstetter, 2016 COA 81, ¶ 44.
¶ 30 Undue influence means words or conduct, or both, that, at the
time of the making of a will, (1) deprived the testator of her free
choice and (2) caused the testator to make at least part of the will
differently than she otherwise would have. See In re Estate of
Everhart, 2021 COA 63, ¶ 33; see also CJI-Civ. 34:14 (2024).
Typically, the only evidence available to demonstrate undue
influence is circumstantial in nature, from which undue influence
may be inferred. See Blackman v. Edsall, 68 P. 790, 792 (Colo. App.
1902); see also Eads v. Dearing, 874 P.2d 474, 477 (Colo. App.
1993) (“Undue influence generally cannot be established by direct
evidence but must be shown by the circumstances surrounding the
transaction.”).
B. Analysis
1. Rebuttable Presumption of Undue Influence
¶ 31 Much of Jason’s argument centers on his assertion that the
probate court erred by failing to engage in an analysis of Jordan’s
16 undue influence claim required under Krueger, which held that if
the party challenging a conveyance “can show the grantee was a
fiduciary to the grantor or had a confidential relationship with the
grantor, either relationship raises the rebuttable presumptions that
the grantee unduly influenced the grantor and that the transaction
was unfair, unjust, and unreasonable.” 205 P.3d at 1154. “Once
raised, these presumptions shift the burden of going forward to the
party seeking to uphold the conveyance.” Id.
¶ 32 The probate court cited Krueger in its written order, observing
that it establishes rebuttable presumptions of undue influence and
unfairness if the party challenging the conveyance “can show the
grantee was a fiduciary to the grantor or had a confidential
relationship with the grantor.” Id. Importantly, however, the court
did not find that Jason’s relationship with Karin met the conditions
that give rise to the rebuttable presumption of undue influence that
Krueger outlines. Nor did it require Jason to rebut any such
presumption. To the contrary, the court rejected Jordan’s claim for
breach of fiduciary duty at the summary judgment stage and —
even after finding in its order that Karin was “dependent on Jason
17 for her physical needs” — did not find that Jason had a confidential
relationship with Karin.
¶ 33 Given the probate court’s apparent conclusion that no
fiduciary or confidential relationship existed, it is not entirely clear
why it discussed the Krueger framework. But what is clear is that
the court’s decision not to apply Krueger’s rebuttable presumption
inured to Jason’s benefit. With no presumption to rebut, the court
never shifted the burden to him to prove that Karin’s trust was not
the product of undue influence. See id. at 1155-56.
¶ 34 Accordingly, because the probate court’s factual findings
would not have supported the application of Krueger’s rebuttable
presumption, and because the court did not shift the burden of
going forward to Jason, we discern no error.
2. Evidentiary Issues
¶ 35 The remainder of Jason’s arguments take issue with the
probate court’s findings in light of countervailing evidence that
Jason presented. For example, he contends that the fact that
Karin’s attorney participated in the drafting of the trust documents
is, standing on its own, more or less enough to establish that she
was not unduly influenced. While we would readily concede that
18 the assistance of a disinterested attorney would reduce the
likelihood that a testamentary instrument is the product of undue
influence, Jason cites no authority that would permit us to reach
that conclusion as a matter of law — as we would be required to do
in order to discount the probate court’s factual finding that Karin
was unduly influenced notwithstanding the fact that she had
worked with an attorney.
¶ 36 Jason also contends that the probate court failed to follow
Colorado law and relied on evidence that he asserts has no bearing
on the question of undue influence, including Karin’s “love and
affection” for Jason, Karin’s physical weakness (as opposed to her
mental acuity), Karin’s “dramatic change in her estate plan,” and
the circumstances surrounding her execution of the challenged
trust documents. While we agree that reasonable jurists could
draw different inferences from these and the other facts presented
at the hearing, we may not disturb the probate court’s conclusions
in the absence of manifest error. Vaccaro v. Am. Fam. Ins. Grp.,
2012 COA 9M, ¶ 34. And because those findings were supported by
substantial evidence, we conclude that no such manifest error
occurred.
19 IV. Request for Appellate Costs
¶ 37 Both parties request that this court award them their costs on
appeal pursuant to C.A.R. 39(a). C.A.R. 39(a)(2) provides that “if a
judgment is affirmed, costs are taxed against the appellant.”
Because we affirm, we remand to the district court for a
determination of appellate costs in Jordan’s favor.
V. Disposition
¶ 38 We affirm the probate court’s order and remand the case to
the probate court for a determination of appellate costs.
JUDGE HARRIS and JUDGE PAWAR concur.