In Re the Estate of Flaws
811 N.W.2d 749
S.D.2012Background
- Lorraine Isburg Flaws died testate but predeceased by her named beneficiaries; intestate succession governs administration.
- Donald Isburg, Lorraine’s brother, died in 1979; his U.S. government probate determined Audrey Courser and Clinton Baker were his sole heirs.
- Yvette, conceived by Joyzelle Rilling and claimed as Donald’s child, obtained tribal paternity order and a new birth certificate in 2008.
- Audrey and Clinton filed to determine heirs and appointed personal representatives; Yvette opposed, seeking co-representation or special administration.
- Trial court granted partial summary judgment to Audrey and Clinton on standing; Yvette appealed; court remanded for further proceedings to determine paternity establishment under SDCL 29A-2-114.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yvette’s failure to serve Tamara requires dismissal | Yvette relied on same counsel, service on Tamara unnecessary | Tamara as separate party required service; lack of service is fatal | No; service on Tamara was effectively made via identical counsel; appeal not dismissed. |
| Whether SDCL 29A-2-114(c) bars Yvette without strict compliance | Clear and convincing DNA proof should establish paternity | Statute lists exclusive methods; DNA in non-estate proceedings insufficient | Statute's methods are exclusive; remand to pursue possible reopening of Donald’s probate for paternity. |
Key Cases Cited
- In re Reese Trust, NA (NA) (authority on who must be served in notices of appeal under SDCL 15-26A-4(3) (cited for service rule))
- Hardy v. W. Cent. Sch. Dist., 478 N.W.2d 832 (S.D. 1991) (failure to serve a notice of appeal on a party before time expires is fatal)
- Long v. Knight Const. Co., Inc., 262 N.W.2d 207 (S.D. 1978) (service requirements and jurisdictional concerns in appeals)
- Morrell Livestock Co. v. Stockman’s Com’n Co., 86 N.W.2d 533 (S.D. 1957) (cited regarding service of notices in appeals)
- Estate of Geier, NA (S.D. 2012) (recent SD cases cited on standing in probate appeals)
- Weeter Lumber Co. v. Fales, 118 P. 289 (Idaho 1911) (adopted view that same counsel representing appealing and nonappealing parties can effect service)
- Box Elder Cnty. v. Harding, 28 P.2d 601 (Utah 1934) (endorses majority view on service when same counsel represents related parties)
- Donny v. Chain of Lakes Cheese Co., 35 N.W.2d 333 (Wis. 1948) (supports separate service considerations in multi-party cases)
- Groseth Intern., Inc., 442 N.W.2d 229 (S.D. 1989) (discusses when ‘may’ can be mandatory in statutory construction)
- Sutherland Statutory Construction, 8-9 ((text)) (treatise cited for interpretive rules (expressio unius est exclusio alterius))