Estate of Carstens

24CA0143 Estate of Carstens 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0143
Gunnison County District Court No. 21PR30047
Honorable J. Steven Patrick, Judge

In re the Estate of Derek North Carstens, deceased.

Renee Silverstone,

Appellant,

v.

Tyghe Carstens, Personal Representative, and Emma De Jongh,

Appellees.

ORDER AFFIRMED IN PART, APPEAL DISMISSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 27, 2025

Garfield & Hecht, P.C., Christopher D. Bryan, Leah M. Gallant, Aspen,
Colorado, for Appellant

Hoskin Farina & Kampf, David A. Younger, Brent A. Starnes, Grand Junction,
Colorado, for Appellee Tyghe Carstens

Dufford Waldeck, Annie D. Murphy, Grand Junction, Colorado, for Appellee
Emma De Jongh
¶1 Appellant, Renee Silverstone, appeals the district court’s

orders removing real property from the estate inventory of Derek

North Carstens (the decedent) and awarding attorney fees. We

affirm in part and dismiss the appeal in part.

I. Background

¶2 The primary dispute in this case is whether the decedent’s

one-half interest in a parcel of real property passed to Silverstone

(the decedent’s wife) by his most recent will or instead transferred to

his daughter, Emma De Jongh, via a beneficiary deed.

¶3 The real property at issue was previously owned wholly by the

decedent and is situated in Crested Butte (the property).1 In 2013,

the decedent hired David Leinsdorf, an attorney specializing in real

estate law, to help convey one-half of the decedent’s interest in the

property to the DJ Trust, of which Silverstone is a trustee and

beneficiary.

¶4 In 2015, the decedent simultaneously executed two estate

planning documents drafted by Leinsdorf: an agreement between

1 The decedent was a South African citizen and lived in South Africa

at the time of his death. His only asset in the United States was the
property, which is named “Lots 15 and 16, ELK RUN
SUBDIVISION.”

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the decedent, Silverstone, and the DJ Trust (the Agreement) and the

decedent’s will (the 2015 Will). Leinsdorf recorded the Agreement

approximately a week after both documents were executed.

¶5 The Agreement and the 2015 Will contain inconsistent

provisions regarding the disposition of the property. The Agreement

provides, “If [the decedent] predeceases Silverstone, [the decedent’s]

one-half (1/2) interest in the Property will pass to his daughter

[Emma De Jongh].” Silverstone would have a life estate in the

whole property and options to buy De Jongh’s interest or sell the

property and pay De Jongh one-half of the proceeds. In contrast,

the 2015 Will provides that the decedent’s “entire interest” in the

property would pass to Silverstone if she survived him and to De

Jongh if Silverstone predeceased him.

¶6 After being diagnosed with terminal cancer, the decedent

wrote three new wills in 2020 and 2021. Each will had a provision

that bequeathed his one-half interest in the property to Silverstone.

¶7 After the decedent’s passing, Tyghe Carstens, the decedent’s

son, petitioned for formal probate, and the district court appointed

him as personal representative of the estate. Carstens filed an

estate inventory, listing the property as an asset. De Jongh

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objected and moved to exclude the property from the estate

inventory, claiming that the Agreement was a beneficiary deed that

conveyed the property to her outside of probate. The court granted

the motion, ruling that the Agreement was a beneficiary deed.

¶8 Silverstone then moved for reconsideration, which the court

denied, and she appealed. See In re Estate of Carstens, (Colo. App.

No. 22CA0297, May 25, 2023) (not published pursuant to C.A.R.

35(e)).

¶9 A division of this court concluded that, because of the

conflicting terms in the Agreement and the 2015 Will, the

Agreement was ambiguous as to the one-half interest in the

property, and it wasn’t clear whether the decedent had intended for

the Agreement to operate as a beneficiary deed. Id. at ¶¶ 13-21; see

Bledsoe v. Hill, 747 P.2d 10, 12 (Colo. App. 1987) (considering

together two documents written about the same subject matter that

were simultaneously executed between the same parties). The

division remanded for the district court to hold an evidentiary

hearing and admit extrinsic evidence to determine the parties’

intent. Carstens, No. 22CA0297, slip op. at ¶ 22. Because it

decided the case on ambiguity, the division didn’t reach the

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question of whether the Agreement satisfied the statutory

requirements to be considered a beneficiary deed. Id. at ¶ 17.

¶ 10 After the remand hearing, the court found that (1) the conflict

between the Agreement and the 2015 Will was due to a scrivener’s

error; (2) the decedent had intended to transfer the property to De

Jongh outside probate; and (3) the Agreement met the statutory

requirements of a beneficiary deed. The court also ruled that

Carstens and De Jongh were entitled to recovery of their costs and

attorney fees but stayed the determination of the final amount of

fees pending this appeal.

¶ 11 Silverstone now appeals, asserting that the district court erred

by (1) finding that the decedent had intended to create a beneficiary

deed; (2) concluding that the Agreement satisfied the statutory

formation requirements; and (3) awarding attorney fees.

II. Standard of Review

¶ 12 “When a court enters a judgment following a bench trial, that

judgment presents a mixed question of law and fact.” State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. We review the

interpretation of statutes, deeds, and recorded instruments de

novo. Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574, 577

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(Colo. App. 2009); Kroesen v. Shenandoah Homeowners Ass’n, 2020

COA 31, ¶ 31.

III. Decedent’s Intent

¶ 13 Silverstone contends that the district court erred by finding

that the decedent intended for the Agreement to operate as a

beneficiary deed. We disagree.

A. Applicable Law and Standard of Review

¶ 14 When construing a contract, deed, or other written

instrument, our primary goal is “to ascertain the intention of the

parties from the instrument as a whole.” Farmers Reservoir &

Irrigation Co. v. Sun Prod. Co., 721 P.2d 1198, 1199 (Colo. App.

1986); see Hess v. Hobart, 2020 COA 139M2, ¶ 14 (“Like contracts,

deeds are generally construed in accordance with the general rules

of construction of written instruments.”).

¶ 15 Intent is normally determined from the instrument’s plain

language. French v. Centura Health Corp., 2022 CO 20, ¶ 25. But

where, as here, the instrument is ambiguous, “evidence beyond the

[instrument’s] four corners . . . is admissible to establish the

parties’ intent.” Id. In this instance, the determination of the

parties’ intent is a question of fact. Gagne v. Gagne, 2014 COA

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127, ¶ 52; see also ADT Sec. Servs., Inc. v. Premier Home Prot., Inc.,

181 P.3d 288, 296 (Colo. App. 2007) (noting that interpretation of

terms of an ambiguous deed is a question of fact).

¶ 16 We review findings of fact for clear error, upholding the

findings if there is any evidence in the record supporting them. In

re Estate of Breeden, 87 P.3d 167, 172 (Colo. App. 2003); C.R.C.P.

52. And as trier of fact, the district court determines the

sufficiency, probative effect, credibility, and weight of the evidence.

Breeden, 87 P.3d at 172. “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.” Id.

B. Additional Facts

¶ 17 At the remand hearing, Leinsdorf testified as follows:

• In 2013, in addition to assisting the decedent with the

conveyance of one-half of the property to the DJ Trust, he

also helped the decedent draft a will (the 2013 Will) that

transferred the decedent’s remaining one-half interest to

Silverstone upon his death.

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• In 2015, the decedent emailed Leinsdorf with express

instructions to revise his will. Specifically, the decedent

wanted Leinsdorf to change the provision of the 2013 Will

that gave “[the decedent’s] entire interest in [the property] to

[Silverstone]” so that the new will would “reflect[] the new

agreement” that transferred the property interest to De

Jongh in the event that the decedent predeceased

Silverstone.

• Leinsdorf accidentally failed to incorporate this change into

the 2015 Will; as a result, the 2015 Will and the Agreement

had conflicting terms.

• At the time of the Agreement’s execution, the decedent had

intended to transfer the property to De Jongh upon his

death in order to ensure she was taken care of.

• The Agreement “has the same effect as a beneficiary deed”

and “provides for disposition of property outside of probate.”

• He recalled that the parties understood that the Agreement

would be recorded and that the decedent knew the reason

for the recording.

The decedent’s emails to Leinsdorf were also admitted into evidence.

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¶ 18 Silverstone presented testimony from the decedent’s friend,

Peter Hamilton Flack, and his wealth manager, James Arnold, who

testified that by 2021 the decedent intended to give the property to

Silverstone upon his death, as indicated by the 2020 and 2021

wills. They also testified that the decedent never discussed the

Agreement with them. Silverstone also called Birgit Brammer to

testify as an expert about how South African law does not possess

legal devices similar to beneficiary deeds. And Jamie Roth, an

expert in estate planning and probate, testified that she believed the

Agreement did not comport with the requirements for a beneficiary

deed.

¶ 19 The district court found that the ambiguity arising out of the

conflict between the Agreement and the 2015 Will resulted from a

scrivener’s error and that the decedent intended for his one-half

interest in the property to pass to De Jongh upon his death.

C. Analysis

¶ 20 The record supports the district court’s findings.

¶ 21 Leinsdorf’s testimony and the decedent’s emails amply support

the court’s findings that the conflicting 2015 Will provision that

gave rise to the ambiguity was a scrivener’s error and that the

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decedent intended that his one-half of the property would transfer

to De Jongh upon his death. The record also supports the court’s

implied finding that the decedent intended for the property to pass

outside of probate via a beneficiary deed because (1) the decedent

executed the Agreement at the same time as the 2015 Will; (2)

Leinsdorf testified that he had “every reason to believe that the

[d]ecedent thought the [Agreement], unless modified, would be a

disposition of the . . . property outside of probate”; and (3) Leinsdorf

testified that he thought the decedent knew the Agreement would

be recorded and why.

¶ 22 We aren’t persuaded otherwise by Silverstone’s arguments

that the testimony from other witnesses demonstrated that the

decedent intended to convey the property to Silverstone or that he

didn’t intend for (or understand) the Agreement to be a beneficiary

deed. Likewise, we reject her reliance on some of Leinsdorf’s

confusing and occasionally contradictory testimony about the

Agreement’s title versus its function. While such evidence could

indeed indicate a contrary intent or tend to discredit some of

Leinsdorf’s statements, we may not second-guess the district

court’s resolution of evidentiary conflicts or the weight and

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credibility it gave to Leinsdorf’s testimony. See id.; In re Estate of

Romero, 126 P.3d 228, 231 (Colo. App. 2005) (“Evaluation of the

credibility of witnesses . . . is a matter solely within the fact finding

province of the trial court . . . .”).

¶ 23 Lastly, Silverstone asserts that the record doesn’t support a

conclusion that the decedent understood a beneficiary deed’s

revocation procedures and effects on subsequent wills. But the

decedent’s intent to enter into a beneficiary deed doesn’t require

detailed knowledge of all legal ramifications associated with it. Cf.

Hogsett v. Neale, 2021 CO 1, ¶ 54 (“Parties asserting a common law

marriage need not prove that they had detailed knowledge of and

intent to obtain all the legal consequences that attach to

marriage.”). Indeed, the statutory language for the optional form of

beneficiary deed doesn’t warn the grantor that the beneficiary deed

will override prior and subsequent wills, nor that it can only be

revoked by a recorded instrument. See § 15-15-404, C.R.S. 2024.

¶ 24 For these reasons, we conclude that the court’s findings about

the decedent’s intent weren’t clearly erroneous.

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IV. Statutory Requirements

¶ 25 Silverstone next contends that the district court erred by

determining that the Agreement met the statutory requirements for

a beneficiary deed under sections 15-15-402 and -404, C.R.S. 2024.

We disagree.

¶ 26 We review the district court’s statutory interpretation de novo.

Premier Bank, 214 P.3d at 577. Our primary objective “is to

ascertain and effectuate the General Assembly’s intent.” In re

Estate of Arnold, 2024 COA 44, ¶ 10. To do that, we begin with the

statute’s plain language, giving that language its commonly

accepted and understood meaning. Id. If the statutory language is

unambiguous — as it is here — we apply it as written. Id. We also

review de novo the court’s application of the statute to the facts of

this case. See id. at ¶ 9.

¶ 27 A beneficiary deed is a deed that “conveys an interest in real

property and which contains language that the conveyance is to be

effective upon the death of the owner.” § 15-15-401(1), C.R.S.

2024. Deed means “any instrument of conveyance of real

property.” § 15-15-401(2) (emphasis added). An “instrument” is a

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“written legal document that defines rights, duties, entitlements, or

liabilities.” Black’s Law Dictionary 948 (12th ed. 2024).

¶ 28 A beneficiary deed must be “signed by the owner of [a real

property] interest, as grantor, designating a grantee-beneficiary of

the interest,” § 15-15-402(1), and recorded “prior to the death of the

owner in the office of the clerk and recorder,” § 15-15-404(1). The

deed must “contain[] the words ‘conveys on death’ or ‘transfers on

death’ or otherwise indicate[] the transfer is to be effective on the

death of the owner.” Id. (emphasis added). The deed “may be in

substantially” the form described by the statute. Id. (emphasis

added).

¶ 29 The Agreement (1) is a written document that defines rights,

duties, and entitlements; (2) is signed by the decedent; (3)

designates De Jongh as the recipient of the decedent’s one-half

interest in the property; and (4) contains language indicating that a

transfer of the decedent’s one-half interest in the property will be

effective upon his death. Specifically, the Agreement says that “[i]f

the decedent predeceases Silverstone, [the decedent’s] one-half

(1/2) interest in the [p]roperty will pass to his daughter, Emma [de

Jongh],” with Silverstone retaining a life estate and certain rights to

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buy or sell the property. Finally, the Agreement was recorded with

the Gunnison County Clerk and Recorder before the decedent’s

death.

¶ 30 Silverstone contends that the Agreement did not clearly

indicate a conveyance of property because it wasn’t titled as a

“beneficiary deed”; didn’t contain the words “conveys on death” or

“transfers on death”; lacked other terms, such as “grantor”; and

passively described the property’s transfer with the phrase “will

pass” rather than indicating the decedent’s affirmative act to

transfer the property through verbs such as “gives,” “transfers,” or

“conveys.” We acknowledge that the Agreement isn’t a paragon of

clarity, and it would certainly be better practice to use a form

similar to the one suggested in the statute. However, the statutory

language doesn’t require a beneficiary deed to have a specific title or

other “magic words.” It must simply contain language that

“otherwise indicates” that a property transfer is to be effective upon

a decedent’s death. § 15-15-404(1) (emphasis added). The

Agreement’s language that the decedent’s one-half interest “will

pass” to De Jongh “if [the decedent] predeceases Silverstone” is

sufficient to meet that statutory directive. See id.

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¶ 31 Next, Silverstone argues that the statute’s requirements,

although necessary, are not sufficient to establish that the

Agreement was a beneficiary deed. In support of this argument, she

advances policy concerns about the wide range of documents that

might inadvertently become beneficiary deeds, conflicting with other

statutes and overriding wills. We share some of those concerns.

Nevertheless, to accept Silverstone’s argument would oblige us to

read requirements into the statute that don’t exist, which we can’t

do. Dubois v. Abrahamson, 214 P.3d 586, 588 (Colo. App. 2009).

So we construe the conditions for a beneficiary deed only in

accordance with the statute’s plain language, not according to

unwritten requirements. See Arnold, ¶ 10.

¶ 32 Relying on Fischbach v. Holzberlein, 215 P.3d 407 (Colo. App.

2009), Silverstone next argues that the Agreement cannot be a

beneficiary deed because it contains “reciprocal promises by the DJ

Trust.” In Fischbach, the division held that a trust could not convey

property via a beneficiary deed. Id. at 409. As a result, the division

concluded that a purported beneficiary deed in which a trust was

the grantor was invalid and couldn’t be reformed. Id. As best we

understand her, Silverstone contends that, because the Agreement

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also contains language indicating a conveyance of property from the

DJ Trust to the decedent if Silverstone died first, the entire

Agreement — including the grant from the decedent to De Jongh —

is not a valid beneficiary deed.

¶ 33 However, this argument misreads the Agreement. Unlike the

provision for De Jongh, the Agreement contains no language

conveying the DJ Trust’s one-half interest in the property to the

decedent upon anyone’s death. The Agreement says that if

Silverstone predeceases the decedent, the decedent will have a life

estate in the property and certain rights to buy the trust’s one-half

property interest or sell the whole property (his interest and the

trust’s interest) and pay the trust one-half of the proceeds.2

¶ 34 Lastly, because it wasn’t preserved, we don’t address

Silverstone’s contention about the Agreement improperly lacking a

legal address. See Est. of Stevenson v. Hollywood Bar & Cafe, Inc.,

2 Silverstone’s argument also stretches the holding in Fischbach v.

Holzberlein, 215 P.3d 407, 409 (Colo. App. 2009). Fischbach didn’t
address the circumstances that Silverstone contemplates: a single
instrument containing two grants — one validly made by an
individual and one that is invalid because it was made by a trust.
Thus, Fischbach doesn’t stand for the principle that an invalid grant
dooms a separate, otherwise-valid grant simply because they were
both contained in the same instrument.

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832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments never presented to,

considered or ruled upon by a trial court may not be raised for the

first time on appeal.”).

V. Attorney Fees

¶ 35 The district court awarded attorney fees against Silverstone

according to the Agreement’s fee-shifting provision but stayed the

resolution of the amount of fees pending the outcome of this appeal.

Silverstone requests we reverse the court’s award of costs and fees

if we determine that the Agreement is a beneficiary deed. However,

because the attorney fee award isn’t final, we lack jurisdiction to

consider her request. See Guy v. Whitsitt, 2020 COA 93, ¶ 34

(“Because no amount of attorney fees has yet been awarded, there

is no ‘final’ appealable order with respect thereto.” (quoting Williams

v. Dep’t of Pub. Safety, 2015 COA 180, ¶ 114)).

¶ 36 We therefore dismiss this portion of Silverstone’s appeal

without prejudice.

VI. Appellate Attorney Fees

¶ 37 Carstens requests appellate attorney fees “as provided in the

Agreement” because the Agreement contains a prevailing-party

provision and he is a prevailing party. We agree, and we remand to

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the district court for determination of his reasonable attorney fees

incurred on appeal.

VII. Disposition

¶ 38 We affirm the order removing the property from the estate and

dismiss without prejudice Silverstone’s appeal of the district court’s

attorney fees order. The case is remanded for the calculation and

award of Carstens’ appellate attorney fees.

JUDGE FREYRE and JUDGE GROVE concur.

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