998 N.W.2d 109
S.D.2023Background
- Russell Tank (d.2016), a South Dakota farmer, executed three wills: 2001 (left estate to daughter Sherri), 2004 (disinherited Sherri; named neighbor/tenant Jason Bender), and 2012 (revoked prior wills; named Bender sole beneficiary and personal representative).
- Bender had a long personal and business relationship with Russell: leased Russell’s land at below-market rent from 2002–2016, arranged some investments, performed household and farm tasks, and had unique knowledge/access to large sums of buried cash on the property.
- Russell’s children contested the 2012 will, alleging lack of capacity, insane delusion, and undue influence; summary judgment for Bender was reversed by this Court on Sherri’s undue-influence claim (Tank I), and the case was remanded for trial.
- A jury trial on Sherri’s undue-influence claim returned a unanimous verdict for Sherri; the circuit court thereafter granted Bender’s renewed Rule 50(b) motion and, alternatively, a new trial, vacating the jury verdict.
- The South Dakota Supreme Court reversed the circuit court: it found Sherri had presented sufficient evidence for a reasonable jury to find undue influence (elements 3 and 4), reinstated the jury verdict, remanded to remove Bender as personal representative, vacated the attorney-fee award pending further proceedings, and left the intestacy/alternative-will questions for the circuit court to decide.
Issues
| Issue | Plaintiff's Argument (Sherri) | Defendant's Argument (Bender) | Held |
|---|---|---|---|
| 1. Whether the court could grant a Rule 50(b) JMOL on grounds not advanced in the Rule 50(a) motion | Bender’s pre-verdict motion conceded elements 1–3, so post‑verdict Rule 50(b) could not raise new grounds; court erred by considering additional grounds | Bender argued Sherri waived the objection by not raising it in the circuit court and that the court may cure procedural defects | Court: Sherri waived the objection by failing to object below; Rule 50(b) argument of overbreadth not preserved for appeal |
| 2. Whether there was sufficient evidence to support the jury’s verdict that Bender unduly influenced Russell (elements 1–4) | Evidence (expert testimony on Russell’s cognitive impairment; secret control of cash; long isolating relationship; below‑market leases; codicil attempts) sufficed for each element, including disposition to wrongfully influence and a result showing effects of undue influence | Evidence was insufficient as a matter of law on elements (especially disposition and result); consistency of 2004 and 2012 wills negates undue influence | Court reversed: viewing evidence favorably to verdict, reasonable minds could differ; sufficient evidence supported elements 3 and 4 and the jury’s verdict was reinstated |
| 3. Whether the court abused its discretion by granting a new trial (alternative to JMOL) for insufficiency of the evidence | New trial unnecessary because competent evidence supports verdict; retrial would likely produce same result | New trial appropriate if evidence insufficient | Court: granting a new trial for insufficiency was an abuse of discretion because the verdict can be explained by the evidence; new trial reversed |
| 4. Post-trial relief: removal as personal representative, intestacy, and attorney fees | Bender should be removed as PR; 2012 will should be set aside (declare intestacy or permit other wills); Bender not entitled to attorney fees because he did not act in good faith | Bender contended he acted in good faith and is entitled to fees under SDCL 29A-3-720; urged court to consider 2004 will | Court: remanded to remove Bender as PR (given reinstated verdict); intestacy/alternate-will questions left to circuit court to decide; prior attorney-fee award vacated and remanded for reconsideration in light of outcome |
Key Cases Cited
- In re Estate of Tank (Tank I), 938 N.W.2d 449 (S.D. 2020) (reversed summary judgment on undue influence; remanded for fact issues)
- In re Estate of Pringle, 751 N.W.2d 277 (S.D. 2008) (elements required to prove undue influence)
- In re Estate of Gaaskjolen, 941 N.W.2d 808 (S.D. 2020) (closure of undue‑influence elements and burdens)
- In re Estate of Borsch, 353 N.W.2d 346 (S.D. 1984) (wills and circumstantial evidence can demonstrate result showing undue influence)
- Neugebauer v. Neugebauer, 804 N.W.2d 450 (S.D. 2011) (secret transactions and below‑market leases as evidence of improper disposition)
- Klarenbeek v. Campbell, 299 N.W.2d 580 (S.D. 1980) (standard for granting JMOL/JNOV when evidence is one‑sided)
- Nassar v. Jackson, 779 F.3d 547 (8th Cir. 2015) (Rule 50(b) review limited to grounds raised in Rule 50(a))