925 N.W.2d 467
S.D.2019Background
- Stanton W. Fox, unmarried with no children, died September 15, 2017, survived by five siblings; he and longtime partner Lynelle Herstedt had broken up before his death.
- Stanton had an executed typed will (2015/Jan. 2016) but on May 18, 2016 he handwritten and signed a short document in his attorney’s office stating: "I hereby revoke all prior wills and codicils ever made or executed by me." His attorney retained the original handwritten revocation.
- After Stanton’s death the original typed will could not be located despite an extensive family search; a photocopy of the earlier typed will was found in a safe-deposit box and proffered by Lynelle.
- Lynelle sought informal probate of the photocopied will; the clerk issued letters but the court revoked them for failure to produce the original. The decedent’s siblings filed petitions for adjudication of intestacy, determination of heirs, and appointment of personal representatives.
- The circuit court concluded the handwritten document was a valid holographic will that revoked the prior will, adjudicated intestacy, determined the heirs (the five siblings), and appointed co-personal representatives; Lynelle appealed. The Supreme Court of South Dakota affirmed.
Issues
| Issue | Plaintiff's Argument (Lynelle) | Defendant's Argument (Siblings) | Held |
|---|---|---|---|
| Whether the court erred by adjudicating intestacy because a proffered copy of the will was not first adjudicated | Lynelle: SDCL 29A-3-407 requires the court determine whether the proffered will is entitled to probate before adjudicating intestacy; she was denied her day in court to prove the copy’s validity | Siblings: Lynelle, as proponent of the copy, bore the prima facie burden of proving due execution and failed to produce evidence; presumption of revocation arose after exhaustive search | Court: Affirmed intestacy—Lynelle failed to meet prima facie burden and the court reasonably found the handwritten revocation valid and the prior will revoked |
| Whether statutory procedure and notice/burden on heirship and appointments were followed | Lynelle: Insufficient/mistimed notice; court appointed PRs before acceptances; Taylor and Cordell’s heirship lacked evidence | Siblings: Service on other petitioners was proper; petitioners met prima facie heirship in pleadings; acceptances were filed and no prejudice shown | Court: Any minor procedural defects were not prejudicial; petitioners satisfied prima facie proof; appointments and determinations valid |
| Whether proceeding 36 days after prior appeal (Fox I) abused discretion by denying time for discovery/continuance | Lynelle: The prior appeal curtailed time; she needed additional discovery and should have been granted a continuance | Siblings: Court allowed reasonable time; Lynelle did not move for continuance and did not show prejudice | Court: No abuse of discretion or plain error; hearing timely and no demonstrated prejudice |
Key Cases Cited
- In re Estate of Deutsch, 865 N.W.2d 874 (S.D. 2015) (presumption that a lost will was revoked after a careful and exhaustive search fails to produce the original)
- In re Estate of Gustafson, 731 N.W.2d 922 (S.D. 2007) (same rule on presumption when original will cannot be found)
- In re Estate of Long, 575 N.W.2d 254 (S.D. 1998) (standard of review for lost-will revocation findings)
- Estate of Martin, 635 N.W.2d 473 (S.D. 2001) (two-step analysis for holographic wills: statutory handwriting requirement and testamentary intent)