(1) If duly demanded, a party is entitled to trial by jury in a formal testacy proceeding and any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.
(2) If there is no right to trial by jury under subsection (1) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
Source: L. 73: R&RE, p. 1546, § 1. C.R.S. 1963: § 153-1-306.
ANNOTATION
Law reviews. For article, "Will Contests — Some Procedural Aspects", see 15 Colo. Law. 787 (1986).
Annotator's note. (1) Cases relevant to § 15-10-306 decided prior to its earliest source, § 153-1-306, C.R.S. 1963, have been included in the annotations to this section.
(2) For cases construing the right to jury trial in civil cases, see the annotations following C.R.C.P. 38.
Under prior law there was no right to trial by jury in probate proceeding. Stratton v. Rice, 66 Colo. 407, 181 P. 529 (1919); Miller v. O'Brien, 75 Colo. 117, 223 P. 1088 (1924).
Contestants entitled to jury if prima facie case is made. Where there is any substantial evidence tending to establish the facts necessary to make out a prima facie case, the contestants of a will are entitled to have the case submitted to the jury for determination on the merits. In re Estate of Sebben, 151 Colo. 12, 375 P.2d 516 (1962).
Trial court invades province of jury if it weighs evidence. Where trial court assumes to weigh the evidence adduced in support of a caveat and to determine what is and what is not credible evidence, it invades the province of the jury. In re Estate of Sebben, 151 Colo. 12, 375 P.2d 516 (1962).
Action to declare trust invalid not a "formal proceeding" so as to entitle the trust beneficiaries to a jury trial under this section. Ayres v. King, 665 P.2d 594 (Colo. 1983).
Applied in In re Malone v. Colo. Nat'l Bank, 658 P.2d 284 (Colo. App. 1982).