Estate of Platts

23CA2057 Estate of Platts 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2057
Boulder County District Court No. 22PR30614
Honorable Robert R. Gunning, Judge

In re the Estate of Johanna Eleanore Platts, deceased.

Nicole Estenfelder, individually and on behalf of her minor child, N.C.,

Appellant,

v.

Debbie A. Platts and William H. Platts,

Appellees.

ORDER AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

The Overton Law Firm, Thomas J. Overton, Steven R. Schumacher, Golden,
Colorado, for Appellant

Lathrop GPM LLP, Thomas A. Rodriguez, Casey C. Breese, Denver, Colorado;
Lathrop GPM LLP, Richard Landon, Minneapolis, Minnesota, for Appellee
Debbie A. Platts

Illumine Legal LLC, Devin C. Daines, W. Douglas Hoak, Denver, Colorado, for
Appellee William H. Platts
¶1 In this probate case, appellant Nicole Estenfelder,1 individually

and on behalf of her minor son, N.C., appeals the district court’s

order dismissing her amended objection to the formal probate of the

November 18, 2021, will of Johanna “Hansi” Eleanore Platts2 (the

2021 will) and amended petition for formal probate of a destroyed

holographic will. We affirm the district court’s dismissal of the

amended petition.

I. Background

¶2 Hansi died on October 7, 2022. Hansi’s two children, Debbie

A. Platts and William “Bill” H. Platts, survived her. In the 2021 will,

Hansi designated Debbie as her personal representative and devised

her entire estate to Debbie and Bill. On November 18, 2022, the

court entered an order for informal probate of the 2021 will and

appointed Debbie as the personal representative.

¶3 Shortly thereafter, Nicole, Hansi’s niece, filed a petition

objecting to the informal probate of the 2021 will and petitioning for

1 Nicole shares the same last name as her father, Lothar, a

nonparty in the proceeding. As such, we refer to them by their first
names and mean no disrespect in doing so.
2 Hansi shares the same last name as her children, appellees

Debbie A. Platts and William “Bill” H. Platts. As such, we refer to
them by their first names and mean no disrespect in doing so.

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formal probate of a holographic will. Nicole alleged that the 2021

will was revoked by a holographic will, executed on September 23 or

24, 2022, that named her and N.C. as Hansi’s sole heirs, and that

Debbie had destroyed the holographic will. To support this claim,

Nicole provided an affidavit from her father, Lothar Estenfelder, who

was Hansi’s brother. The affidavit stated the following:

• Lothar and Hansi periodically discussed changes she had

made to her will.

• In May 2022, Hansi told Lothar that she wanted her

entire estate to go to Nicole and N.C. instead of her

children.

• In August 2022, Hansi ask Lothar to help her change her

will to ensure that her estate passed to Nicole and N.C.

Lothar refused but suggested that Hansi contact the

attorney who assisted her with the 2021 will. However,

that attorney had retired and Hansi said she did not feel

comfortable working with an attorney she did not know.

• On September 17, 2022, Nicole, N.C., and Lothar visited

Hansi. Hansi repeated that she wanted her entire estate

to pass to Nicole and N.C. Lothar told Hansi that

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Colorado recognized holographic wills, explaining that

holographic wills are handwritten and “identical” to

Lothar and Hansi’s mother’s will. Hansi was visibly

excited by the idea.

• On September 23, 2022, one of Hansi’s caregivers said

that Hansi got up in the middle of the night to work on

documents. In an email to Lothar, Debbie said that

Hansi was probably working on her will.

• On October 31, 2022, at 5:28 a.m., Lothar missed a call

from Debbie. When Lothar called Debbie back, she was

crying. Debbie said that she found a holographic will in

Hansi’s handwriting that disinherited her and Bill and

replaced them with Nicole and N.C. as heirs. Later,

Debbie told Lothar that she destroyed the holographic

will.

¶4 Nicole asked the court to admit the holographic will to probate

and to find that (1) the holographic will was destroyed by Debbie; (2)

Nicole and N.C. were the sole heirs of Hansi’s estate; and (3) the

2021 will was revoked by the holographic will.

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¶5 Debbie and Bill filed a joint motion to dismiss Nicole’s petition.

They argued that Nicole lacked standing to bring the action under

C.R.C.P. 12(b)(1) and that she failed to plead a plausible claim to

satisfy the statutorily required criteria to probate a lost holographic

will under C.R.C.P. 12(b)(5). They further argued that Nicole’s

petition required the court to rely on un-pleaded inferences to admit

a lost holographic will. They requested attorney fees and that the

petition be dismissed with prejudice.

¶6 The district court granted the motion to dismiss without

prejudice. It rejected Debbie and Bill’s standing argument and

found that Nicole was an interested person and had standing to file

the petition, a ruling not challenged here. Nevertheless, the court

concluded that the petition failed to allege facts that satisfied the

requirements to probate a lost holographic will. See § 15-11-502(2),

C.R.S. 2024; § 15-12-402(3), C.R.S. 2024. The district court

concluded that the petition contained no assertions that

• anyone witnessed Hansi execute or sign the will;

• the holographic will included Hansi’s signature;

• Nicole or Lothar saw the holographic will or had any

knowledge of its contents; and

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• the holographic will described Hansi’s property or how

the estate would be divided between Nicole and N.C.

¶7 In dismissing the petition without prejudice, the court noted

that if Nicole sought to replead her claim, her renewed petition

“would need to include allegations regarding [Hansi’s] signature,

information regarding the conten[t]s including the alleged property

distribution, and the identification of the individuals who would

prove the contents of the will.” The court also denied Debbie and

Bill’s request for attorney fees.

¶8 Debbie then filed a new petition for formal probate of the 2021

will and to be appointed as personal representative. Thereafter,

Nicole filed an amended objection to formal probate of the 2021 will

and an amended petition for formal probate of the holographic will.

Lothar provided an amended affidavit containing new factual

assertions, including the following:

• Hansi’s relationship with her children was contentious.

Hansi was fond of Nicole and N.C.

• Hansi’s mother executed a holographic will. Therefore,

Hansi understood that a holographic will must be

handwritten, signed, and dated.

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• On September 23, 2022, Hansi told Lothar that she wrote

the new will. Hansi said that she changed the will and

told Lothar where he could find it. According to Lothar,

Hansi did not change her will again.

• Since Hansi’s death, Lothar attempted to speak to

Hansi’s former caregivers. They refused, saying that they

were instructed not to talk to him by the “person who has

power of attorney over her estate.” Lothar assumed this

person was Debbie.

¶9 Nicole argued that Debbie was not exercising her powers as

personal representative in a “neutral fashion and in the best

interests of all intended beneficiaries and interested persons.” In re

Estate of Treviño, 2020 COA 125, ¶ 28. Therefore, Nicole requested

the opportunity to conduct discovery, including examining Debbie

under oath.

¶ 10 Debbie and Bill filed a joint motion to dismiss in which they

argued that despite Lothar’s amended affidavit, the amended

petition still failed to state a claim upon which relief could be

granted under C.R.C.P. 12(b)(5). They argued that the amended

petition did not meet the Warne plausibility standard because it

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failed to allege facts sufficient to satisfy the criteria of sections

15-11-502(2) and 15-12-402(3). See Warne v. Hall, 2016 CO 50,

¶ 1.

¶ 11 The district court granted the motion to dismiss the amended

petition. The court concluded that despite the new factual

allegations, the amended petition failed to allege facts that satisfied

the criteria of sections 15-11-502(2) and 15-12-402(3), including

that

• Hansi signed the holographic will;

• anyone witnessed Hansi signing the holographic will;

• Nicole or Lothar ever saw the holographic will; and

• anyone had personal knowledge of the material terms of

the holographic will, including how the estate would be

distributed between Nicole and N.C.

¶ 12 Further, the district court concluded that the amended

petition did not allege facts that could support a reasonable

inference that Hansi signed the holographic will. The court stated:

In an attempt to cure this fatal deficiency, the
Amended Affidavit states that Hansi was “very
familiar with holographic wills” and was
“aware of the importance of such a will being
handwritten, signed, and dated” because her

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mother had a practice of making estate
planning changes though holographic wills.
Amended Affidavit, ¶ 5. From these
statements, [Nicole and N.C.] seek an inference
that the alleged holographic will was in fact
signed. Inferences must be reasonable,
however, and here there are no facts to suggest
that any of Hansi’s mother’s alleged
holographic wills were in fact signed, whether
the jurisdiction in which she resided required
a signature to be valid, or whether Hansi or
Lothar had any personal knowledge that their
mother’s alleged wills actually bore her
signature.

¶ 13 Finally, the court concluded that discovery was not warranted

because a party may not use discovery as a means to formulate a

claim. See In re Estate of Everhart, 2021 COA 63, ¶ 27. The district

court then dismissed Nicole’s amended petition with prejudice.

¶ 14 On appeal, Nicole contends that the district court failed to

properly apply the plausibility standard and erroneously dismissed

her amended petition. We disagree.

II. Motion to Dismiss under C.R.C.P. 12(b)(5)

¶ 15 Nicole contends that the district court erroneously dismissed

her amended petition under C.R.C.P. 12(b)(5). We disagree.

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A. Standard of Review

¶ 16 We review de novo a district court’s decision to dismiss a

complaint for failure to state a claim under C.R.C.P. 12(b)(5).

Jagged Peak Energy Inc. v. Okla. Police Pension & Ret. Sys., 2022

CO 54, ¶ 24. “Applying the same standard as the district court, we

accept all factual allegations in the complaint as true and view them

in the light most favorable to the non-moving party.” Id.

Dismissing a claim under C.R.C.P. 12(b)(5) is proper “only when the

facts alleged in the complaint cannot, as a matter of law, support

the claim for relief.” Id. (quoting N.M. v. Trujillo, 2017 CO 79, ¶ 18).

¶ 17 In Warne, our supreme court adopted a “plausibility” standard

for assessing C.R.C.P. 12(b)(5) motions. Under this standard, a

claim is subject to dismissal unless “the factual allegations . . . [are]

enough to raise a right to relief ‘above the speculative level.’”

Walker v. Women’s Pro. Rodeo Ass’n, 2021 COA 105M, ¶ 37

(quoting Warne, ¶ 9). Therefore, a complaint must “allege sufficient

facts that, if taken as true, show plausible grounds to support a

claim for relief.” Jagged Peak, ¶ 25.

¶ 18 “In determining the plausibility of a claim, we look to the

elements of the particular cause of action, keeping in mind that the

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[plausibility] standard doesn’t require a plaintiff to ‘set forth a prima

facie case for each element.’” George v. Urb. Settlement Servs., 833

F.3d 1242, 1247 (10th Cir. 2016) (quoting Khalik v. United Air

Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012)). The plausibility

standard requires that the complaint “contain either direct or

inferential allegations respecting all the material elements [of the

particular cause of action] necessary to sustain a recovery under

some viable legal theory.” Adams Cnty. Hous. Auth. v. Panzlau,

2022 COA 148, ¶ 51 (quoting Bryson v. Gonzales, 534 F.3d 1282,

1286 (10th Cir. 2008)). Alleged facts that are “merely consistent

with” a particular theory “stop[] short of the line between possibility

and plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

B. Applicable Law

¶ 19 Section 15-11-502(1) establishes three requirements for a will:

(1) it must be in writing; (2) it must bear the testator’s signature or

be signed in the testator’s name in the testator’s conscious presence

and by the testator’s direction; and (3) it must either bear the

signatures of at least two persons who witnessed either the

testator’s signature or the testator’s acknowledgment of the

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signature, or be acknowledged by the testator before a notary

public.

¶ 20 A will that does not comply with these requirements is valid as

a holographic will, whether or not witnessed, if the signature and

material portions of the document are in the testator’s handwriting.

§ 15-11-502(2).

¶ 21 Further, a court may admit a lost or destroyed will if it meets

the requirements of section 15-12-402(3):

If a will has been lost or destroyed, or for any
other reason is unavailable, and the fact of the
execution thereof is established, as herein
provided, and the contents thereof are likewise
established to the satisfaction of the court, and
the court is satisfied that the will has not been
revoked by the testator, the court may admit
the same to probate and record, as in other
cases. In every such case the order admitting
such will to probate shall set forth the
contents of the will at length, and the names of
the witnesses by whom the same was proved,
and such order shall be recorded in the record
of wills.

C. Analysis

¶ 22 While we recognize that the plausibility standard did not

require Nicole to “set forth a prima facie case for each element,” she

was still required to plead enough factual allegations to plausibly

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support the basic elements of her claim. Adams Cnty. Hous. Auth.,

¶ 51 (quoting George, 833 F.3d at 1247). And based on our review

of the record, we conclude that the district court properly applied

the plausibility standard in dismissing the amended petition, for

two reasons.

¶ 23 First, nothing in the amended petition sufficiently alleges that

Hansi signed the holographic will, a requirement of section

15-11-502(2). We are not persuaded otherwise by Nicole’s

argument that we should infer that Hansi signed the holographic

will because she was familiar with the requirements due to her

mother’s use of holographic wills in estate planning. As noted by

the district court, “there are no facts to suggest that any of Hansi’s

mother’s alleged holographic wills were in fact signed, whether the

jurisdiction in which she resided required a signature to be valid, or

whether Hansi or Lothar had any personal knowledge that their

mother’s alleged wills actually bore her signature.” Therefore, we

find this proposed inference speculative. See Warne, ¶¶ 9, 24 (to

survive a motion to dismiss for failure to state a claim, a

complaint’s allegations must raise a right to relief above the

speculative level).

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¶ 24 Nor are we convinced that we can infer Hansi’s signature from

the fact that she put the holographic will away for safekeeping.

Wills are often stored in a manner for safekeeping, and nothing

further is alleged that connects this particular behavior to Hansi

actually signing the will. Thus, we find this proposed inference

speculative. See id.

¶ 25 Likewise, we are not persuaded that Debbie’s alleged reaction

to discovering the holographic will could satisfy the signature

requirement. Debbie never told Lothar that she saw Hansi’s

signature, and the amended petition did not allege any facts to

suggest that Debbie was familiar with the signature requirement.

Alleged facts that are “merely consistent with” a particular theory

“stop[] short of the line between possibility and plausibility.” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

¶ 26 Second, the amended petition fails to provide any factual

allegations from which the court could determine the contents of

the will at length, as required by section 15-12-402(3). We reject

Nicole’s hypothetical argument that even if the holographic will

said, “I want everything I have to go to Nicole Estenfelder and

[N.C.],” this would be sufficient to establish its contents. As noted

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by the district court, “Neither [Nicole], nor Lothar, have alleged that

they saw the will, and therefore, [they] have no personal knowledge

of its purported contents.”

¶ 27 For the same reasons, we reject Nicole’s argument that the

court could infer the contents from Debbie’s destruction of the will.

Relying on Breeden v. Stone, 992 P.2d 1167 (Colo. 2000), Nicole

contends that the court erroneously required a “certain level of

specificity” in determining the effectiveness of the holographic will.

But Breeden did not involve a lost or destroyed will, nor were the

contents of a holographic will in dispute. Therefore, Nicole’s

reliance on Breeden is misplaced.

¶ 28 Likewise, we reject Nicole’s argument that her allegations,

supported by Lothar’s affidavit, met the pleading requirements of

C.R.C.P. 8 and that if more is required, the solution is to allow

discovery and set a hearing. We disagree because allowing

dismissal of a facially insufficient pleading advances the purpose of

the probate code, including the promotion of a speedy and efficient

system for settling the estate of the decedent. Everhart, ¶ 19.

“Applying Rule 12(b)(5) promotes these goals by weeding out

petitions that fail to state a plausible claim for relief and protecting

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parties from frivolous litigation.” Id.; see also Warne, ¶ 19 (“[W]e

have . . . identified a growing need, and effort in our rules, to

expedite the litigation process and avoid unnecessary expense,

especially with respect to discovery.”).

¶ 29 Accordingly, we affirm the district court’s dismissal of Nicole’s

claim under C.R.C.P. 12(b)(5).

III. Disposition

¶ 30 The order is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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