865 N.W.2d 874
S.D.2015Background
- Decedent Delbert Deutsch died in 2012; a copy (but not the original) of his 2001 will was found on his desk by his widow Marcelina and her son after a careful, exhaustive search.
- Marcelina filed for informal intestate probate with the copy attached; Delbert’s nephews Hillary (Larry) Schuster and Ronald Jaspers petitioned for formal probate of the copy and for determination of heirs.
- The attorney who drafted the will died in 2008; staff could not confirm whether the original was delivered to Delbert or retained by the attorney.
- Nephews testified to a longstanding close relationship with Delbert and to statements by Delbert (as late as 2012) indicating he intended to leave certain real estate to Larry consistent with the 2001 will.
- The circuit court found proponents met statutory requirements for admitting a copy when the original is lost: at least one credible witness verified the copy and the court was reasonably satisfied the will was not revoked.
- The court denied the nephews’ petition for attorney’s fees under SDCL 29A-3-720; they sought review of that denial and appellate fees, both of which the Supreme Court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a lost (original) will may be admitted to probate when original not found and presumption of revocation arises | Marcelina: presumption of revocation not adequately rebutted; conversations and relationships insufficient; copy admission improper | Nephews: copy is a true copy, a credible witness attested, circumstantial evidence (acts, declarations, location of copy, longstanding intent) rebuts presumption | Court: Affirmed admission. Under SDCL 29A-3-402(d) and precedents, minimal "reasonably satisfied" standard met; circuit court not clearly erroneous |
| Whether nephews are entitled to award of attorney’s fees for actions that purportedly benefited the estate | Nephews: litigating genuineness of a will benefits estate and public policy supports fee award | Estate (Marcelina)/Circuit Court: nephews’ actions did not produce a substantial benefit to estate; fees discretionary under statute | Court: Affirmed denial of fees and denied appellate fee request; no abuse of discretion |
Key Cases Cited
- Estate of Gustafson, 731 N.W.2d 922 (S.D. 2007) (lost-will presumption of revocation and proof standard for admitting copies)
- State v. Bailey, 464 N.W.2d 626 (S.D. 1991) (explaining the meaning of "reasonably satisfied" standard)
- In re Estate of Long, 575 N.W.2d 254 (S.D. 1998) (no express limitations on types of evidence to rebut revocation presumption)
- In re Estate of Schnell, 683 N.W.2d 415 (S.D. 2004) (deference to trial court on witness credibility and weight of evidence)
- Wagner v. Brownlee, 713 N.W.2d 592 (S.D. 2006) (attorney’s fees reviewed for abuse of discretion)
- In re Estate of Laue, 790 N.W.2d 765 (S.D. 2010) (public-policy argument that litigation clarifying will validity can benefit estate)