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 November 29, 2018
2018COA169
No. 17CA0864, Estate of Little — Family Law — Common Law Marriage; Probate — Wills and Will Contracts — Reformation to Correct Mistakes
The decedent executed a will during her lifetime devising her
estate to her spouse, from whom she later divorced. After her
death, her ex-husband claimed that he was entitled to inherit under
her will because he and the decedent had remarried at common law
before she died. Alternatively, he sought reformation of her will,
contending that she intended to devise her estate to him regardless
of their marital status.
The trial court found that the ex-husband, who by operation of
law was removed as a beneficiary of the decedent’s will upon their
divorce, failed to show that he and the decedent remarried at
common law. Relying on In re Estate of Johnson, 2012 COA 209, the trial court also concluded that the decedent’s ex-husband
lacked standing to seek reformation of her will.
In this opinion, a division of the court of appeals affirms the
trial court’s finding of no common law remarriage, but reverses on
the standing issue. The division declines to follow Johnson and
instead concludes, based upon an examination of the revocation
and reformation statutory schemes, that a former spouse is not
foreclosed on standing grounds from seeking reformation under
these circumstances. COLORADO COURT OF APPEALS 2018COA169
Court of Appeals No. 17CA0864 Custer County District Court No. 15PR30006 Honorable Ramsey Lama, Judge
In re the Estate of Caroline Little, deceased.
Jeffrey Lynn Curry,
Petitioner-Appellant,
v.
Humane Society of Colorado, American Cancer Society, and American Society for the Prevention of Cruelty to Animals
Respondents-Appellees.
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE WELLING Román and Dunn, JJ., concur
Announced November 29, 2018
Evans Case, LLP, Aaron L. Evans, Timothy D. Bounds, Denver, Colorado, for Petitioner-Appellant
Jenna L. Mazzucca Esq., PC, Jenna L. Mazzucca, Salida, Colorado, for Respondents-Appellees ¶1 This case involves a dispute over who is entitled to inherit the
estate of Caroline Little. On appeal, Little’s former husband, Jeffrey
Lynn Curry, first contends that the trial court erred in finding that
he and Little were not common law remarried as of the time of her
death. If they were, the parties agree that he would be entitled to
inherit her estate under the terms of her will. Curry also contends
that, even if they were not remarried, the trial court erroneously
found that he lacked standing to seek reformation of her will.
Curry sought to reform Little’s will to reflect her intention to devise
her estate to him regardless of their marital status. The contingent
beneficiaries of Little’s will, the Humane Society of Colorado, the
American Cancer Society, and the American Society for the
Prevention of Cruelty to Animals (collectively, the Interested
Parties), urge us to affirm the trial court’s rulings.
¶2 Although we are not persuaded that the trial court erred in
finding that Curry and Little were not common law remarried, we
disagree with the trial court’s conclusion that Curry lacked
standing to seek reformation. We, therefore, affirm in part, reverse
in part, and remand for further proceedings on Curry’s reformation
claim.
1 I. Background
¶3 Curry and Little met in 1972 and were common law married in
1980. Together they operated a building construction and
restoration business.
¶4 In 2006, they executed mutual wills devising their estates to
each other. Little’s will stated, “I am married to Jeffrey Lynn Curry.
Any reference in my will to my spouse is to such person.” The will
devised her estate “to my spouse, if my spouse survives me.” The
will also provided that, “[i]f my spouse does not survive me,” her
estate is devised in equal shares to the Interested Parties.
¶5 They lived together in a house in Westcliffe, Colorado, until
2010. In 2010, Curry and Little divorced, and a divorce decree was
entered on March 29, 2010. After the divorce, Curry moved away,
but eventually returned to Westcliffe. Upon returning, he lived in a
church building adjacent to the house where he and Little had lived
together. Little lived in the house, which she received in the
divorce. They continued to operate their business together.
¶6 In April 2015, Little’s residence was destroyed by a fire.
Following the fire, Little moved into Curry’s residence. There, she
slept in a separate bedroom in the basement. Her insurance
2 company paid for her to rent the bedroom and furniture from
Curry. Insurance investigators spoke to Little after the fire, and in
their report, they listed Curry as her “ex-husband.”
¶7 Little died on June 19, 2015.
¶8 In January 2016, Curry filed a petition with the trial court
asserting that he was entitled to inherit Little’s estate because he
was her common law spouse at the time of her death. He also
alleged that Little intended for him to inherit her estate and
requested reformation of her will to conform with her alleged intent.
The Interested Parties opposed Curry’s petition.
¶9 In January 2017, the trial court held a two-day hearing on the
petition. At the hearing, the Interested Parties introduced evidence
that, between 2010 and 2015, Curry and Little completed forms for
tax and insurance purposes representing that they were divorced.
The Interested Parties introduced evidence that Curry and Little
filed individual tax returns in 2012 and 2013, that Little described
her relationship with Curry as that of “Bus[iness] Partner[s]” in a
loan application, that Little identified herself as divorced in an
application for Medicaid benefits, that Curry identified himself as
“separated” in an application for Medicaid benefits, and that Little
3 identified Curry as her “[e]x-husband” in a homeowner’s insurance
application. The Interested Parties also introduced a voice
recording that Little left for her insurance company identifying
Curry as her “ex-husband.”
¶ 10 Curry introduced testimony from several witnesses, including
two employees of their business and one of Little’s friends. The
employees testified that Curry and Little spent considerable time
together after the divorce and referred to each other as “husband”
and “wife” when scheduling appointments and when picking up
prescriptions at the pharmacy. Little’s friend testified that Curry
and Little resumed life as a couple after the divorce.
¶ 11 On the second day of the hearing, the trial court found that
“reformation and/or theory of mistake under common law did not
apply to the case” and dismissed Curry’s reformation claim on the
ground that he lacked standing to assert such a claim. On March
28, 2017, the trial court issued a written order making findings of
fact and concluding that Curry and Little were not remarried at
common law when she died.
4 II. Analysis
¶ 12 When a marriage — common law or otherwise — is dissolved,
any revocable disposition of property made by the divorced
individual to the former spouse is revoked by operation of law, see
§ 15-11-804(2), C.R.S. 2018, unless revocation is contrary to “the
express terms of a governing instrument, a court order, or a
contract relating to the division of the marital estate made between
the divorced individuals,” id.; In re Estate of DeWitt, 54 P.3d 849,
852 (Colo. 2002).
¶ 13 On appeal, Curry does not dispute that, based on the terms of
Little’s will, his divorce from Little removed him as a beneficiary of
her will pursuant to section 15-11-804(2). But the same statute
provides that any spousal transfer provisions in a will that are
revoked upon divorce are “revived by the divorced individual’s
remarriage to the former spouse.” § 15-11-804(5). Curry contends
that the provisions in Little’s will devising her estate to him were
revived by their common law remarriage.
¶ 14 In the alternative, Curry contends that when Little executed
her will she intended for him to inherit her estate regardless of their
marital status. On that basis, he sought to reform Little’s will
5 pursuant to section 15-11-806, C.R.S. 2018, to reflect that
intention. On appeal, he contends that the trial court erroneously
found that he lacked standing to pursue the reformation claim.
Curry does not contend that he is entitled to inherit Little’s estate
on any basis other than that (1) he and Little were remarried at
common law, or (2) Little’s intent at the time she executed the will
was for him to inherit, regardless of their marital status.
¶ 15 For the reasons below, we affirm the trial court’s finding of no
common law remarriage. But we reverse the trial court’s ruling that
Curry lacked standing to seek reformation and remand for further
proceedings on the reformation claim.
A. The Trial Court Did Not Err in Finding that Curry and Little Were Not Remarried at Common Law
¶ 16 Curry contends that the trial court’s determination that he
and Little were not remarried at common law is erroneous in two
respects. First, he contends that reversal is required because the
trial court failed to apply the more lenient standard of proof
applicable to common law remarriage, as set forth in In re Estate of
Peterson, 148 Colo. 52, 365 P.2d 254 (1961). Second, he contends
that the trial court’s finding was erroneous because the elements of
6 common law remarriage were conclusively established at the
hearing. For the reasons set forth below, we disagree with both
contentions.
1. Standard of Review
¶ 17 Because this case was tried to the court, our review of the trial
court’s findings of fact is highly deferential. “We defer to the court’s
credibility determinations and will disturb its findings of fact only if
they are clearly erroneous and not supported by the record.” Lawry
v. Palm, 192 P.3d 550, 558 (Colo. App. 2008). “When the evidence
is conflicting, a reviewing court may not substitute its conclusions
for those of the trial court merely because there may be credible
evidence supporting a different result.” Citywide Banks v. Armijo,
313 P.3d 647, 649 (Colo. App. 2011) (quoting Lawry, 192 P.3d at
558). But we review de novo the trial court’s application of the
governing legal standards. Lawry, 192 P.3d at 558.
2. Legal Principles
¶ 18 In Colorado, “[a] common law marriage is established by the
mutual consent or agreement of the parties to be husband and wife,
followed by a mutual and open assumption of a marital
relationship.” People v. Lucero, 747 P.2d 660, 663 (Colo. 1987); see
7 also Klipfel’s Estate v. Klipfel, 41 Colo. 40, 46, 92 P. 26, 28 (1907)
(recognizing common law marriage as valid and binding). Mutual
consent need not be reduced to writing or expressed through words,
Smith v. People, 64 Colo. 290, 293, 170 P. 959, 960 (1918), but the
parties’ conduct must evidence their mutual understanding that
they are husband and wife, see Lucero, 747 P.2d at 663.
¶ 19 When direct evidence of an agreement between the parties to
be common law married or remarried is unavailable, the two factors
that most clearly demonstrate an intent to be married are
(1) cohabitation, and (2) a general reputation in the community that
the parties hold themselves out as husband and wife. Id. at 665.
Cohabitation in this context means “holding forth to the world by
the manner of daily life, by conduct, demeanor, and habits, that the
man and woman have agreed to take each other in marriage and to
stand in the mutual relation of husband and wife.” Smith, 64 Colo.
at 294, 170 P. at 960.
¶ 20 In determining whether the parties intended to be married,
“the conduct of the parties provides the truly reliable evidence of the
nature of their understanding or agreement.” Lucero, 747 P.2d at
664. Relevant conduct “includes maintenance of joint banking and
8 credit accounts; purchase and joint ownership of property; the use
of the man’s surname by the woman; . . . and the filing of joint tax
returns.” Id. at 665. However, “any form of evidence that openly
manifests the intention of the parties that their relationship is that
of husband and wife will provide the requisite proof from which the
existence of their mutual understanding can be inferred.” Id.
¶ 21 Regarding common law remarriage specifically, our supreme
court has held that the standard of proof is less “exacting and
scrupulous” than for common law marriage. See Peterson, 148
Colo. at 53-55, 365 P.2d at 255-56; see also Ward v. Terriere, 153
Colo. 326, 332, 386 P.2d 352, 355 (1963) (Peterson “holds that the
evidence in such cases may be less than the positive and convincing
proof necessary to establish a common law marriage.”).
3. Analysis
a. Curry Has Not Shown that the Trial Court Applied an Incorrect Standard of Proof
¶ 22 Curry contends that the trial court applied an incorrect
standard of proof in finding that he and Little were not remarried at
common law.
9 ¶ 23 First, he contends that the trial court’s failure to expressly
refer to Peterson in its written order shows that the trial court failed
to apply the correct standard. We are not persuaded.
¶ 24 It is true that, in its written order, the trial court did not
explicitly state the applicable standard of proof it applied. But
where a trial court does not specify the standard of proof, we
presume that it applied the correct standard. See People in Interest
of R.W., 989 P.2d 240, 243 (Colo. App. 1999) (absent contrary
indication in the record, the trial court is assumed to have applied
the correct standard of proof); Auslaender v. MacMillan, 696 P.2d
836, 837 (Colo. App. 1984) (trial court is presumed to have applied
correct standard of proof in the absence of any contrary statement).
It is Curry’s burden to overcome this presumption. Auslaender,
696 P.2d at 837.
¶ 25 Curry does not argue, nor does the record reflect, that the trial
court expressly applied an incorrect legal standard in any part of its
judgment. Indeed, the trial court articulated the correct elements
for evaluating whether a common law marriage had been proven.
Instead, Curry argues that the error is reflected in the trial court’s
failure to cite Peterson and its ultimate finding of no common law
10 remarriage. But the trial court’s order finding no common law
remarriage was well reasoned and thorough, containing extensive
findings of fact that are amply supported by the record. And based
on those findings — which include weighing the evidence and
assessing the credibility of witnesses — the trial court concluded
that “[t]he most reliable evidence shows that Ms. Little considered
herself divorced and Mr. Curry her ex-husband.” We simply cannot
discern a basis in the record for concluding that the trial court
applied an incorrect standard of proof. Cf. In re Marriage of Farr,
228 P.3d 267, 269 (Colo. App. 2010) (the trial court’s finding that
the wife’s testimony was more credible than the husband’s
indicated that it applied a preponderance of the evidence standard).
Accordingly, we reject Curry’s contention that the trial court applied
an incorrect legal standard.
¶ 26 Second, Curry contends that the trial court’s failure to
expressly recognize the distinction between common law marriage
and remarriage requires reversal. We are not persuaded by this
contention either. In Ward, our supreme court rejected an identical
contention of error under strikingly similar circumstances. Ward
involved an appeal from a judgment of no common law remarriage.
11 153 Colo. at 327, 386 P.2d at 353. In Ward, the appellant
contended that the trial court made its findings before the supreme
court’s decision in Peterson and, therefore, erroneously applied the
law to the question of common law remarriage. Id. at 331, 386 P.2d
at 355. Curry’s argument here is nearly identical. But the supreme
court in Ward rejected this contention and affirmed, explaining that
[t]he Peterson case does not and was not intended to strip a trial court of its fact-finding function. At most it merely set a standard with which a trial court shall weigh the evidence in cases involving common law remarriage and holds that the evidence in such cases may be less than the positive and convincing proof necessary to establish a common law marriage.
Id. at 331-32, 386 P.2d at 355. As discussed in the next part of
this opinion, we discern no grounds for reversal here that were not
considered and rejected in Ward.
b. Common Law Remarriage Was Not Established
¶ 27 Curry next argues that the trial court erred because the
evidence introduced at the hearing established the existence of a
common law remarriage under the Peterson standard. We are not
persuaded.
12 ¶ 28 As a threshold matter, we reject Curry’s initial argument that
Peterson itself supports reversal because its facts are “almost
identical.” The court in Peterson mentions only a single fact about
the parties’ relationship — that their divorce was preceded by
twenty years of common law marriage. 148 Colo. at 55, 365 P.2d at
256. No other details about their relationship are given by the
supreme court, which instead noted that “[i]t is not necessary to
relate the evidence in detail.” Id. at 54, 365 P.2d at 255. So, the
alleged factual similarities between Peterson and this case cannot
and do not dictate the outcome here.
¶ 29 As alluded to above, however, the supreme court’s decision in
Ward is instructive. In Ward, Martha French appealed a judgment
finding that she and her former husband, Will Feagins, were not
remarried at common law when he died. 153 Colo. at 327, 386
P.2d at 353. French contended, as Curry does on appeal, that it
was error for the trial court to find that she was not remarried at
common law under the more lenient standard of proof set forth in
Peterson. Id. at 331-32, 386 P.2d at 355. But the supreme court
affirmed. Id. at 332, 386 P.2d at 355. Notwithstanding “[e]vidence
of cohabitation and some evidence that some of their acquaintances
13 considered them husband and wife,” the supreme court concluded
that the trial court’s finding was supported by French’s “use of the
name Martha French in all transactions and on records pertaining
to her pension checks” and by her sworn testimony in an unrelated
trial that she and Feagins were not husband and wife. Id. at 330,
386 P.2d at 354.
¶ 30 Curry neither discusses nor attempts to distinguish Ward.
But facts similar to those relied upon by the supreme court in Ward
are present here. The trial court found, with record support, that in
the years between their 2010 divorce and Little’s death in 2015,
Curry and Little identified their relationship as that of business
partners on loan applications, and they filed individual income tax
returns. The trial court also found, with record support, that Little
identified herself as divorced in an application for public benefits,
identified Curry as her ex-husband in a homeowner’s insurance
application, and identified Curry as her “ex-husband” in a recorded
exchange with an insurance company and in a report to insurance
company investigators.
¶ 31 Where one party consistently used her maiden name in legal
documents and transactions, courts have affirmed a finding of no
14 common law remarriage on that basis. See Ward, 153 Colo. at 330-
31, 386 P.2d at 354-55; Matter of Estate of Wires, 765 P.2d 618,
618-19 (Colo. App. 1988) (finding that a party filed individual
income tax returns and used her maiden name on “all important
documents” supported conclusion of no common law marriage); see
also In re Frawley, 112 B.R. 32, 34 (D. Colo. 1990) (finding of no
common law remarriage not erroneous even under relaxed Peterson
standard because, among other things, parties filed individual
income tax returns). Curry does not dispute the trial court’s
findings showing that Little consistently represented herself as
unmarried in financial transactions and legal documents.
¶ 32 At the hearing, Little’s brother also testified that he kept in
regular contact with his sister, but she never indicated that she was
remarried. The trial court found the brother to be a credible
witness.
¶ 33 Curry does not identify any case in which a court considered
similar evidence but found a common law marriage. He contends,
however, that the requisite elements were established by the
testimony of three witnesses at the hearing — two employees of
their business and a friend of Little’s. These witnesses testified that
15 he and Little held themselves out as husband and wife after their
2010 divorce. While this testimony is certainly relevant, it is
insufficient to warrant reversal given the substantial evidence to the
contrary, which the trial court credited in reaching its decision. We
defer to the trial court’s determinations on issues of fact and
credibility. See Lucero, 747 P.2d at 665.
¶ 34 We next turn to Curry’s contention that the trial court
erroneously determined that he lacked standing to seek reformation
of Little’s will.
B. The Trial Court Erred In Dismissing Curry’s Reformation Claim
¶ 35 As noted above, Curry asserted an alternative basis for his
claim that the court should find he is a beneficiary of Little’s will —
reformation pursuant to section 15-11-806. Relying on In re Estate
of Johnson, 2012 COA 209, however, the trial court concluded that
Curry lacked standing to assert such a claim. Curry contends that
dismissal of this claim for lack of standing was error. Curry makes
two arguments in this regard: either Johnson is distinguishable or,
in the alternative, it was wrongly decided and we should not follow
it. Although we do not think that Johnson is distinguishable, we
16 are unpersuaded by its analysis of the standing issue and,
therefore, decline to follow it. Instead, we conclude that Curry had
standing to seek reformation, and, therefore, we reverse and
remand for additional findings on Curry’s reformation claim.
1. Legal Principles
¶ 36 We review whether a party has standing de novo. Jones v.
Samora, 2016 COA 191, ¶ 21. We also review questions of
statutory interpretation de novo. UMB Bank, N.A. v. Landmark
Towers Ass’n, 2017 CO 107, ¶ 22.
a. Standing
¶ 37 In Colorado, “parties to lawsuits benefit from a relatively broad
definition of standing,” Ainscough v. Owens, 90 P.3d 851, 855 (Colo.
2004), and the standing test has “traditionally been relatively easy
to satisfy,” id. at 856.
¶ 38 In a probate proceeding, a party must be an “interested
person” to have standing. See Estate of Milstein v. Ayers, 955 P.2d
78, 81 (Colo. App. 1998); see also § 15-12-705(1)(k), C.R.S. 2018
(“[A] court will not routinely review or adjudicate matters unless it is
specifically requested to do so by a beneficiary, creditor, or other
interested person . . . .”). An interested person
17 includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person, which may be affected by the proceeding. . . . The meaning as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.
§ 15-10-201(27), C.R.S. 2018 (emphasis added). As is evident from
the last sentence of the definition, determining who qualifies as an
interested person in a probate proceeding is highly context
dependent. Id. And an interested person generally includes a
potential devisee under a will. In re Estate of Evarts, 166 P.3d 161,
164 (Colo. App. 2007).
b. Revocation and Reformation
¶ 39 As discussed above, section 15-11-804(2) provides that the
dissolution of a marriage revokes any revocable disposition of
property by the divorced individual to the former spouse, unless
revocation contravenes “the express terms of a governing
instrument, a court order, or a contract relating to the division of
the marital estate made between the divorced individuals.” Section
15-11-804(2) “represents a legislative determination that the failure
18 of an insured [or a testator] to revoke the designation of a spouse as
a beneficiary after dissolution of the marriage more likely than not
represents inattention.” DeWitt, 54 P.3d at 852. The statutory
revocation of spousal transfers upon dissolution of marriage thus
“attempts to give effect to the presumptive intent of the decedent.”
Id.
¶ 40 More than a decade after the adoption of section 15-11-804,
the Colorado General Assembly enacted section 15-11-806, which
allows a court to
reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence that the transferor’s intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.
By authorizing reformation of an unambiguous will, section
15-11-806 “provides a means by which disappointed beneficiaries
can litigate what they perceive to be the testator’s true intent.”
Baker v. Wood, Ris & Hames, Prof’l Corp., 2016 CO 5, ¶ 36.
19 2. Analysis
¶ 41 With these concepts in mind, we turn to the questions (1)
whether Curry has standing to assert a reformation claim, and (2) if
so, whether remand is required.
a. Curry Has Standing To Pursue a Reformation Claim
¶ 42 The trial court relied on Johnson to find that Curry lacked
standing to seek reformation. Given that Johnson is the only case
to address standing under section 15-11-806, we will turn to it as
our starting point as well. In Johnson, the petitioner, Laurel
Christensen, sought reformation of her deceased ex-husband’s life
insurance policy to recognize her as the beneficiary. Johnson, ¶ 6.
Christensen claimed that her ex-husband intended for her to
remain as the beneficiary, notwithstanding their divorce. Id. at
¶ 20. The trial court dismissed Christensen’s reformation claim
pursuant to C.R.C.P. 12(b)(5). Id. at ¶ 6 n.1. On appeal, a division
of this court affirmed the dismissal. Id. at ¶ 1. The division
concluded that, “by operation of section 15-11-804(2), Christensen
was removed as beneficiary to Johnson’s life insurance policy . . .
upon her divorce.” Id. at ¶ 22. With this conclusion, we agree. But
the division in Johnson then held that, because Christensen’s
20 divorce from Johnson removed her as a beneficiary of his insurance
policy, she “lacked standing to bring a reformation claim under
section 15-11-806.” Id. It is here that we part ways with the
division in Johnson.
¶ 43 The trial court was bound by Johnson. See, e.g., Scott v.
People, 2017 CO 16, ¶ 17. But, unlike the trial court, we are not
bound by another division’s holding. People v. Zubiate, 2013 COA
69, ¶ 48, aff’d, 2017 CO 17. And we are not persuaded by the
standing analysis in Johnson. We read Johnson to hold that an
ex-spouse whose claim is revoked pursuant to section 15-11-804
lacks standing to assert a reformation claim pursuant to section
15-11-806. The implied premise of this holding appears to be that
a petitioner seeking to inherit under his or her former spouse’s will
has only one remedy: section 15-11-804(5), which provides that
remarriage or nullification of the divorce revives any provisions in a
will that were revoked upon divorce. But we do not read section
15-11-804(2) as foreclosing a former spouse from bringing a
reformation claim under section 15-11-806. And if we were to
follow Johnson, any reformation claim brought by a former spouse,
21 even if meritorious, would fail for lack of standing. But nothing in
either statute supports this result.
¶ 44 Instead, we view the revocation and reformation statutes as
serving distinct but complementary purposes. On the one hand,
the revocation statute — section 15-11-804(2) — “attempts to give
effect to the presumptive intent of the decedent” by revoking any
spousal transfers upon dissolution of the marriage. See DeWitt, 54
P.3d at 852. Revocation is thus intended to conform the will to the
testator’s presumed intent. On the other hand, the reformation
statute, section 15-11-806, is intended to give effect to the testator’s
actual intent. See Baker, ¶ 36 (Section 15-11-806 “provides a
means by which disappointed beneficiaries can litigate what they
perceive to be the testator’s true intent.”). Yet by holding that a
divorce eliminates standing to seek reformation of a former spouse’s
will, Johnson would require that we uphold the testator’s presumed
intent despite clear and convincing evidence of the testator’s actual
intent. This incongruous result further supports our conclusion
that the General Assembly did not intend for section 15-11-804(5)
to be the exclusive remedy available to a petitioner in Curry’s shoes.
22 ¶ 45 The revocation statute also serves a “gap-filling” function that
complements, not supersedes, the reformation statute. As
explained by the Restatement (Second) of Property § 12.1 cmt. 9
(Am. Law Inst. 1995), “[e]very state has numerous statutory rules of
construction that purport to govern when the will is silent.” Section
15-11-804(2), which does not operate when contrary to the terms of
the will itself, is such a “gap-filling” rule. See id. (“Except as
provided by the express terms of a governing instrument . . . .”).
But the operation of such a “gap-filling” rule does not foreclose a
former spouse from seeking reformation, as Johnson held. To the
contrary, because “reformation puts [the testator’s] language back
in the will, there is no gap for the gap-filling statutes to fill.”
Restatement (Second) of Prop. § 12.1 cmt. 9 (“[S]tatutory gap-filling
rules do not take precedence over reformation in a well-proven case
of mistake.”).
¶ 46 Moreover, even if we recognize that a former spouse has
standing to seek reformation under section 15-11-806, he or she
must still prove the testator’s intent by “clear and convincing”
evidence. This heightened standard of proof “deters a potential
plaintiff from bringing a reformation suit on the basis of
23 insubstantial evidence.” Restatement (Second) of Prop. § 12.1 cmt.
e.
¶ 47 In short, we conclude that nothing in section 15-11-804,
section 15-11-806, or the overall statutory scheme indicates that
the General Assembly intended to exclude a former spouse from
pursuing reformation pursuant to section 15-11-806 or that it
intended section 15-11-804(5) to be an ex-spouse’s sole and
exclusive remedy for avoiding a statutory revocation precipitated by
a divorce. Accordingly, we conclude that Curry has standing to
pursue his reformation claim pursuant to section 15-11-806.
C. Remand Is Required
¶ 48 The Interested Parties also contend that, even if Curry had
standing to seek reformation, we should affirm on the alternative
ground that Curry has failed to state a claim for reformation. We
are not persuaded.
¶ 49 The record does not support any conclusive characterization of
Curry’s reformation claim. The Interested Parties are correct that
section 15-11-806 is unavailable to reform a will based on a
testator’s post-execution change of mind, see Fischbach v.
Holzberlein, 215 P.3d 407, 409-10 (Colo. App. 2009), or to correct a
24 testator’s failure to prepare and execute a new document, see
Restatement (Second) of Prop. § 12.1 cmt. h. Even so, the complete
evidence supporting Curry’s reformation claim was not heard at the
hearing.
¶ 50 The trial court found that Curry lacked standing and, on that
basis, excluded evidence he sought to introduce in support of his
reformation claim. The trial court also struck the portions of his
closing argument relating to reformation. Nor did the Interested
Parties ever seek dismissal of Curry’s section 15-11-806 claim
pursuant to C.R.C.P. 12(b)(5). As a result, although we express no
opinion on the merits of Curry’s reformation claim, we conclude
that the record is insufficient to support a determination as to
whether Curry has stated or will be able to prove a cognizable
reformation claim under section 15-11-806. Therefore, remand is
both appropriate and necessary.
III. Conclusion
¶ 51 For the reasons set forth above, we affirm the trial court’s
order determining that Little and Curry were not common law
remarried, but we reverse the dismissal of Curry’s reformation claim
25 under section 15-11-806 and remand for further proceedings and
presentation of additional evidence on the reformation claim.
JUDGE ROMÁN and JUDGE DUNN concur.