979 N.W.2d 558
S.D.2022Background
- Shirley Hickey created a revocable trust and executed a Second Amended Trust in February 2018 that largely disinherited six children in favor of three residuary beneficiaries. Shirley died September 12, 2019.
- First National Bank, as successor trustee, gave beneficiaries written notice on September 25, 2019, triggering the 60-day statutory repose period (SDCL 55-4-57(a)(2)) to challenge the trust.
- Bradley filed a timely petition (November 22, 2019) seeking supervision of the trust and to invalidate or reform the Second Amended Trust.
- Nearly a year later (October 12, 2020) Kristina Lippert and Darren Hickey moved to intervene under SDCL 15-6-24(a)(2); the circuit court denied intervention as untimely based on the 60-day repose statute and barred them from presenting evidence or examining witnesses at trial.
- Kristina and Darren appealed; the Supreme Court reversed the denial of intervention, vacated the restriction on trial participation, and remanded for the trial court to re-evaluate timeliness under the Federal-style intervention standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to intervene was timely under SDCL 15-6-24(a)(2) | Kristina & Darren: they moved as soon as they learned Bradley no longer protected their interests; timeliness is measured from that moment | Warren, Jeannine & Annette: intervenors cannot revive time‑barred trust-contest claims after the 60-day repose (SDCL 55-4-57(a)) | Reversed: court must assess timeliness under SDCL 15-6-24(a)(2) standards (Weimer/Larson factors); intervenors met the tripartite test, so denial solely on repose was error |
| Whether SDCL 55-4-57(a) barred intervention to join Bradley’s timely petition | Kristina & Darren: they sought to join an already-timely petition, not to assert independent, time-barred claims | Opponents: intervention would allow them effectively to revive time-barred trust-contest claims | Held: intervenors may join a timely pending challenge; they cannot assert independent claims barred by the repose statute. The court erred to treat intervention as reviving time‑barred claims |
| Whether the trial court properly prohibited their participation at trial after court supervision was ordered | Kristina & Darren: as supervised‑trust beneficiaries they are interested parties entitled to be heard (SDCL 21-22-13) | Opponents: allowing participation would prejudice original parties and permit time‑barred claims to proceed | Held: vacated the restriction; beneficiaries under court supervision are interested parties and the court must reconsider participation after re-evaluating intervention timeliness |
| Appellate jurisdiction over denial of motion for reconsideration clarifying trial participation | Kristina & Darren: appeal of the denial of reconsideration is reviewable to the extent it flows from the timely-appealed denial of intervention | Opponents: an order denying reconsideration is not independently appealable | Held: Court has jurisdiction to review the portion of the reconsideration order that restricts trial participation because it is a direct extension of the timely-appealed denial of intervention |
Key Cases Cited
- Berbos v. Berbos, 921 N.W.2d 475 (establishing tripartite test and liberal construction for intervention as of right under SDCL 15-6-24(a)(2))
- Matter of Elizabeth A. Briggs Revocable Living Tr., 898 N.W.2d 465 (statute of repose for trust contests cannot be tolled)
- In re Wintersteen Revocable Tr. Agreement, 907 N.W.2d 785 (repose extinguishes belated trust-contest claims)
- Weimer v. Ypparila, 504 N.W.2d 333 (timeliness for intervention measured from when interests are not adequately protected)
- Police & Fire Ret. Sys. of City of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (intervention cannot be used to revive claims extinguished by a repose statute)
- Southard v. Hansen, 342 N.W.2d 231 (procedural nature of intervention and appealability of intervention denials)
- Citibank (S.D.), N.A. v. State, 599 N.W.2d 402 (intervenor presence does not bestow status of original party; intervention allows a voice in pending litigation)