         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


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  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


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  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




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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.




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