992 P.2d 1167 (Colo. 2000)
Spicer Breeden died in his home on March 19, 1996, from a self-inflicted gunshot wound two days after he was involved in a highly publicized hit-and-run accident that killed the driver of the other vehicle.1 Upon entering the decedent’s home following his suicide, the Denver police discovered on his desk a handwritten document that read: “I want everything I have to go to Sydney Stone— ‘houses,’ ‘jewelwry,’ [sic] stocks[,] bonds, cloths [sic]. P.S. I was Not Driving the Vehical— [sic].” At the bottom of the handwritten document, the decedent printed, “SPICER H. BREEDEN” and signed beneath his printed name.2
Sydney Stone offered the handwritten document for probate as the holographic will of the decedent. The decedent had previously executed a formal will in 1991 and a holographic codicil leaving his estate to persons other than Respondent.3 Several individuals filed objections to the holographic will, including Holly Breeden Connell and Vic E. Breeden, who alleged lack of testamentary capacity.4
On September 3-6, 1996, a hearing was held on the petition for formal probate. Both parties presented evidence in the form of testimony of factual and expert witnesses, handwriting samples, and other documents.5 The probate court found that the decedent used cocaine and alcohol for several years prior to his death, based on the testimony of his friends Jennifer Chelwick and Michael Crow.6 Relying on the autopsy report and testimony from the decedent’s sister, the court found that the decedent used alcohol and cocaine on the evening of March 17 and between March 17 and 19.7 Based on the testimony of several of the decedent’s friends, the court found that the decedent’s moods were alternately euphoric, fearful, and depressed, and that he was excessively worried about threats against himself and his dog from government agents, friends, and others.8
In addition, the probate court considered the testimony of expert witnesses, including two forensic toxicologists, two forensic psychiatrists, a forensic document examiner, and two handwriting experts.9 Friends Ken McSpadden and Rick Eagan testified that in the two weeks prior to his death the decedent had indicated to each of them in separate conversations that he did not intend to leave his estate to his family.10 On September 3, 1996, the first day of the probate hearing, Petitioners filed a motion to dismiss Breeden Sr. and Connell as parties to the suit.11 Petitioners appealed to the court of appeals after the probate court admitted the will to probate on September 26, 1996. The court of appeals affirmed, and the Supreme Court granted certiorari.12
Whether the probate court incorrectly applied both the insane delusion and the Cunningham elements tests for testamentary capacity and improperly merged the insane delusion test with the Cunningham elements test?13
A testator possesses testamentary capacity when of sound mind under section 15-11-501.14 Sound mind requires both satisfaction of the five Cunningham elements and the absence of any insane delusion that materially affects the will's disposition.15 The Cunningham elements are that the testator understands the nature of the act, knows the extent of property, understands the proposed disposition, knows the natural objects of bounty, and that the will reflects the testator's wishes.16 An insane delusion is a persistent belief contrary to all evidence, and it defeats capacity only when it materially influences the property disposition.17 The two tests developed independently and remain discrete yet not mutually exclusive, so an objector may rely on either or both.18
No. The probate court correctly applied both tests separately to the established facts of Spicer Breeden's holographic will without improper merger.19 Under the Cunningham test the court found that the decedent indexed the major categories of his estate, knew his home and rental addresses, identified the devisee Sydney Stone by name with her current address, and produced a legible and logical document that reasonably set out his intent.20 Handwriting experts further confirmed that the decedent retained command of his motor skills at the time of execution.21 The court then turned to the insane delusion test and determined that although the decedent suffered from delusions concerning government agents, listening devices, and threats to himself and his dog, these delusions did not affect or influence the disposition of property.22
The court relied on the prior 1991 will that already omitted the objectors, statements to friends Ken McSpadden and Rick Eagan that the decedent did not intend to leave his estate to family, and evidence that the decedent had been considering revisions to his will.23 Because the probate court analyzed each test independently and reached distinct conclusions on each, it did not merge the tests.24
The probate court correctly applied the two exclusive tests for testamentary capacity to find that Spicer Breeden was of sound mind when he executed the holographic will.25
Whether the probate court erred when it denied the motion to dismiss Vic E. Breeden and Holly Breeden Connell as parties based on an improper application of the Dead Man’s Statute?26
Under the Dead Man’s Statute in section 13-90-102 a party to a civil action may not testify on his or her own behalf when an adverse party sues or defends as heir, legatee, or devisee of a deceased person.27 A witness is disqualified if he or she is a party at the time of the proceedings.28 Denial of a motion to dismiss parties is reviewed for abuse of discretion, and a court may deny such a motion when granting it would cause unfair surprise or prejudice to the opposing party.29
No. The probate court did not abuse its discretion or misapply the Dead Man’s Statute when it denied the motion to dismiss Vic E. Breeden and Holly Breeden Connell.30 The motion was filed on the first day of the hearing, September 3, 1996, even though the objectors had ample time to prepare after the petition was filed in April and objections were filed in June.31 Granting the motion at that late stage would have resulted in unfair surprise and potential prejudice to Sydney Stone.32
Because Breeden Sr. and Connell remained parties, the Dead Man’s Statute properly barred their testimony regarding conversations with the decedent, and the probate court correctly refused to permit them to disclaim their interest on the day of trial to evade the statute.33
The probate court did not abuse its discretion when it denied the motion to dismiss Vic E. Breeden and Holly Breeden Connell as parties.34