## Facts

- Sara and Stephen Sherwood died in Larimer County, Colorado, after Stephen killed Sara and then himself; their minor child, R.M.S., was not present.
- After the deaths, R.M.S. was placed in the physical care and custody of Ginny Villers (the child’s maternal aunt) and William Brian Villers.
- The Villers filed an emergency petition in probate court seeking appointment as guardians, asserting an immediate need and that guardianship with them was in the child’s best interest.
- Kathleen Taylor Nace, the child’s paternal grandmother, petitioned for guardianship based on being named as guardian in Stephen Sherwood’s will, filed an acceptance of the testamentary appointment, and sought court confirmation.
- The Villers objected to confirming Nace’s testamentary appointment and sought a court-appointed guardianship determination based on the child’s best interest.

## Issues

1. When a will nominates a testamentary guardian and a person with the child’s care and custody contests the nomination and seeks appointment, must the probate court decide the dispute under a best-interest-of-the-minor standard rather than a harm-only standard?
2. Did the probate court err by confirming the testamentary guardian absent a showing that the appointment would harm the child?

## Decision

- The Colorado Supreme Court, in an original proceeding under C.A.R. 21, made the rule to show cause absolute.
- The Court held that the probate court applied an incorrect legal standard by treating the testamentary appointment as displaceable only upon a showing of potential harm or injury to the child.
- The Court concluded that, in a contested guardianship involving an objector with care and custody, the probate court must apply the “best interest of the minor” standard.
- The matter was remanded for the probate court to reconsider guardianship using the correct best-interest standard.

## Legal Principles

- A testamentary nomination of a minor’s guardian is not controlling when a qualified person with the child’s care and custody contests the nomination and petitions for appointment.
- In contested proceedings, the probate court must apply the best-interest-of-the-minor standard set out in Colorado’s guardianship statutes governing court appointment.
- Applying a harm-only test in place of the statutory best-interest standard is legal error and constitutes an abuse of discretion warranting relief.

## Conclusion

The court required probate courts to resolve contested testamentary guardianship disputes by determining which proposed guardianship is in the child’s best interest, rather than confirming the testamentary nominee unless harm is shown, and remanded for reconsideration under the correct standard.


In re R.M.S., 128 P.3d 783 (Colo. 2006)