*1
In the Matter of the ESTATE OF Ken
neth Thomas DUEBENDORFER.
No. 23833.
Supreme Court of South Dakota. May
Considered on Briefs 2006. Aug.
Decided
(Mollers) Upon the chief beneficiaries. Duebendorfer’s several individuals petition filed a contesting probate of the A jury will. found the will to be the *3 product of undue influence and it was de- probate. nied appeal. Mollers We affirm. History Facts and Procedural [¶ 2.] Duebendorfer died on 2003, at age ninety. He was a modestly, who bachelor lived but had sub- sister, stantial wealth. He had one Irene Rohrabaugh, February who died Kathy great Moller by niece marriage of Rohrabaugh. She and her hus- Randy band are the appellants this case. (she The contestants are Marcella Hinds husband, Don, and her deceased were Duebendorfer), close friends of the Hinds’ daughters, two Victoria Sikkink and Linda Zenk, Maxine Bienash and Elizabeth Barks, Duebendorfer, both cousins of and Jeffords, Russell Duebendorfer’s friend. 1998 Duebendorfer executed a power attorney naming Hinds as his attorney-in-fact. taking She was care of basis, Duebendorfer on a daily providing hygiene, transportation. meals and She also assisted Duebendorfer in his financial affairs paying his bills. It undisput- ed that money, Hinds never asked for nor paid by was she ever Duebendorfer for assisting him. O’Connell, Kristine L. Kreiter Sander J. From the time Hinds was named Woods, Fuller, Morehead of Shultz and attorney-in-fact Duebendorfer’s until Roh- Smith, Falls, Dakota, Sioux South Attor- death, rabaugh’s Mollers had “spo- mere neys appellants Mollers. Duebendorfer, radic” contact with seeing Zimmer, Jeff Cole of Cole, Duncan & only him about once a month. After Roh- Parker, Dakota, South Attorneys for con- rabaugh’s Duebendorfer was re- Hinds,
testants appellees, M. V. Sik- (who quested by McGill, Attorney Mike kink, Zenk, Bienash, L. Jeffords, M. R. & was representing Kathy on behalf of Roh- E. Barks. estate), rabaugh’s to disclaim his interest joint bank property accounts and Due-
MILLER, Retired Justice. Rohrabaugh. bendorfer held with This re- [¶ 1.] Kenneth quest Duebendorfer executed apparently was for South Dakota a will that made Moller inheritance tax concerns. Duebendorfer tionship began with Duebendorfer to sud- property, but his interest disclaimed in the mon- actions her denly change; his interest his towards refused to disclaim so, Kathy had done would have ey. belligerent. If he angry were Duebendor- she was benefi- financially benefited as apparently upset fer was with Hinds over Rohrabaugh’s estate. ciary of from gun grandson her had borrowed him, the care frequency as well as 2001, Hinds took In March Due- receiving he from her. Addi- visits Bank of Alcester to bendorfer to State tionally, there was concern because it was Lois Anderson to with bank official meet being Ran- suggested Duebendorfer several bank accounts certifi- change Lewis, (CD’s) friend, dy Ray and Duebendorfer’s jointly had held deposits he cates of *4 opened mishandling mismanag- that Rohrabaugh.1 Duebendorfer Hinds was or with payable on ing money.2 suggestions upset different CD’s with death his These five (POD) approxi- total of for a beneficiaries Duebendorfer. $170,000. two opened also oth- mately He the end March [¶ 8.] Towards approximately for a er accounts total Ray his Duebendorfer reviewed will with $178,000. Those two accounts were Lewis. told that he Lewis Duebendorfer only with no name POD Duebendorfer’s trying him” thought Hinds was to “take beneficiaries. this upset and Duebendorfer. Duebendor- March, inAlso Duebendorfer met fer further his will Mollera. reviewed with Attorney Gary to discuss mak- with Ward Kathy at testified that she was “amazed” Hinds at this present a will. was ing “ques- what will contained and she meeting, participate but did not provisions, noting tioned” the will’s executed that discussion. Duebendorfer Randy her brother was not mentioned. provided
will March 2001. It cash an Attorney arrange contacted McGill to West, Evelyn Brugger, Dennis bequests to could appointment so that Duebendorfer Barks, Bienash, Judy Elizabeth Maxine will. power attorney execute new Hinds, Timm, Joyce Phyle, Linda Marcella Floren, and Victoria Sikkink. will 30, 2002, Duebendor- 9.] On March [¶ provided that the residue of the further naming signed power attorney fer a new equal in seven estate would be divided attorneys-in- Mollera as his true and lawful Nason, Phyle, Joyce to Ella Russell shares He a new fact. also discussed terms of Floren, Jeffords, Hinds, Linda Victoria that he will with McGill. McGill testified Sikkink, Randy (they were meeting noted at the Duebendorfer equally). to share 1/7 Hinds, not very angry with but was was any feelings at ill towards angry nor had Rohrabaugh’s After Mol- of his cur- any of the other beneficiaries frequent to have more contact began lers this com- meeting rent will. After McGill in March Beginning with Duebendorfer. through municated with Duebendorfer 2002, Randy attempting was to see him Randy, receiving Randy changes from to began help Mollera also once a week. allegedly to make. Duebendorfer, Duebendorfer wanted assisting with his care for they meals, Kathy admitted that Randy At Both and household needs. hygiene, impact changes time, her of the noted that rela- were aware the same Hinds that there no evidence these benefited or 2. Mollers concede None of accounts Hinds was steal- that Hinds ever had or record family. any of her member mishandling ing, taking, any of Duebendor- or money property. fer’s or will, ie., making Duebendorfer was in his [¶ 12.] After the execution of were be the chief power beneficiaries Mollers used the of attor- ney personal under new will. for their Randy benefit. used it to attempt terminate lease McGill testified that at the time Roger Duebendorfer had with Stevens on drafting the new will he was concerned farm, Duebendorfer’s which had existed possibility with the Mollers were exercis- (because thirty years over Randy was ing undue influence over Duebendorfer. himself). in farming interested the land opinion, McGill’s three of the four ele- spoke When Stevens to Duebendorfer ments of undue influence were present. lease, about the apparently Duebendorfer He testified that Mollers had both access had no Randy idea that had termination opportunity to exercise undue influ- papers prepared. talking After with Due- ence over Duebendorfer. Finally, McGill bendorfer, they agreed the lease would testified that had he known remain in agreed effect. in- Stevens telling Duebendorfer that Hinds was steal- crease the rent on 9.5 acres of land and ing him from or mishandling money, his keep the rent the same for the remainder the information would be un- evidence of of the term. *5 due badge and, influence and a of fraud Moreover, 15, January 2003, [¶ 13.] importantly, he would not prepared have after obtaining a note allegedly signed by permitted the new will or it to be executed. Duebendorfer, Randy changed the POD beneficiary on all of the accounts at the [¶ 11.] Duebendorfer executed the new bank, listing Alcester Kathy himself and as 10, will on April again 2002. It made the POD All beneficiaries.3 of these monetary bequests Jeffords, to Russell changes resulted approximately Evelyn Brugger, Hinds, Roy Zinser, $266,000 in POD upon benefits to Mollers as well as a bequest Ray Lewis. How- 27, Duebendorfer’s death on April 2003. ever, will, unlike the old under the new will Randy also beneficiary made POD changes bequests these would fail if the individual on two accounts Duebendorfer had at the predeceased Duebendorfer. The will then Wells Fargo Bank in Beresford. After the made Mollers the chief beneficiaries of changes by Randy, made these two ac- Duebendorfer’s estate leaving the re- counts had as POD ben- mainder, both real personal property, eficiaries and resulted in a payment of to them rather dividing than it evenly as $129,000 approximately to Mollers. Over- he had before. The new will made this all, upon Duebendorfer’s death Mollers provision though even several people, in- paid were a total approximately Mollers, cluding testified that Duebendor- $395,000 as a result of all the POD benefi- fer did not want his estate go to one ciary changes Randy made using pow- individual; rather, he it wanted divided attorney. er of evenly among people. several Also trouble- some was that the bequest to Mollers [¶ After 14.] Duebendorfer’s would not fail if predeceased Dueben- Hinds and several others filed a petition dorfer; rather, go would to their heirs. contesting probate of Duebendorfer’s The new will further 10, contained a contesta- claiming procured it had been bility clause that the old will had not. undue influence on part of Mollers. Moller, 78, 3. See Bienash v. 2006 SD transactions. N.W.2d 431 explanation for further of these 25-28, the verdict and is upon 2005. some effect July trial was held juryA rights of the product harmful to the substantial the will was jury found probate. it was denied it. party assigning influence and undue raising two is- appeal Mollers Stroh, Kappenman v. 2005 SD sues: (citing 40-41 Behrens v. 704 N.W.2d Wedmore, 79, ¶ 37, 2005 SD 698 N.W.2d in al- trial court erred
1. Whether Premier Bank v. First evidence under lowing “other acts” 404(b)). Inc., (Rule Enterprises, 19-12-5 SDCL Kolcraft ¶ 40, 430, 448)). 686 N.W.2d giv- the trial court erred 2. Whether 17. ing Jury Instruction Analysis and Decision Review Standard the trial court Whether allowing acts” evi- erred in “other “Evidentiary rulings (Rule presumed cor under 19-12-5 by the trial court are dence SDCL made 404(b)). an abuse of are reviewed under rect and Kennedy, Veeder discretion standard.” a motion in limine Mollers filed 18.] [¶ ¶ 41, 589 N.W.2d any regarding evidence seeking to exclude Oster, 305, 309 (citing State v. as Duebendorfer’s attor- their activities Mattson, (S.D.1993)). also State v. to the POD beneficia- neys-in-fact relating concerning changes as well as evidence ry omitted). (citations is not “The test to terminate Stevens’ Randy’s attempt *6 have made the same we would
whether pretrial hearing farm lease. After judicial whether we believe ruling, but from both arguments receiving briefs circum mind, the law and the in view of Mollers’ mo- the trial court denied parties, stances, reasonably reached the could have trial, parties At made reference tion. both 23, Veeder, 1999 SD same conclusion.” beneficiary the POD to and discussed ¶ 41, (citing v. at 619 State 589 N.W.2d and the farm lease. changes to the CD’s (S.D.1986)). 424, 426 Rufener, 392 N.W.2d However, objected to this Mollers never found, in prejudicial “If it must be error testimony. overturn the this Court will nature before Mattson, ruling.” evidentiary
trial court’s
ar
appeal,
on
Mollers
Now
¶
71, 13,
(citing
at 544
698 N.W.2d
2005 SD
allowing
¶
in
court erred
gue that the trial
McEldowney, 2002 SD
Novak v.
omitted)).
to introduce evidence
(citations
the contestants’
909, 912
655 N.W.2d
(Rule
19-12-5
“other acts” under SDCL
jury instruc-
construe[s]
[This Court]
404(b)).
argue that the
They specifically
they provided
to learn
tions as whole
changing
relating to
evidence
of the law.
a full and correct statement
the CD’s held
POD beneficiaries
misled,
whole,
If,
the instructions
as a
and the
to
Duebendorfer
confused,
conflicted,
then reversible
or
farm
of Stevens
attempted termination
party charging
error occurred.
unfair
“irrelevant and
by Randy was
lease
in
given
error
that an instruction
ultimate detriment
ly prejudicial
showing
that the
has the dual burden
However, because Mollers
the Mollers.”
prejudi-
was erroneous
instruction
trial,
at
object
this evidence
failed
preju-
cial. An erroneous instruction
for
this issue
preserve
they have failed
produced
in
probability
dicial if
all
issue,
appeal.4
appealable
there is no
no revers-
ible error.
in
The law effect at the time of
purpose
trial was clear. “The
of a motion
Kappenman, SD
N.W.2d
evidence,
prevent prejudicial
in limine is to
Star,
State v. Red
at
(citing
467 N.W.2d
argument,
reaching
or reference from
(S.D.1991)
769, 771
Gallipo,
State v.
(citing
However,
jury.
ears of the
a trial court’s
(S.D.1990))) (addition-
460 N.W.2d
ruling
preliminary
on motion
limine is
omitted).
also
al citations
Kolcraft
may change depending
on what actual
¶92, 16,
Enterprises, 2004 SD
Kappenman,
ly happens in
trial.”
at 441
“in
(holding
objec-
the absence of an
¶96, 4,
Kol
(citing
445 246, (citing High 250 Plains Ge First, they assert it -was N.W.2d two reasons. conclude, Research, a as Inc. v. Milk-Iron the trial court netics JK error for law, (S.D.1995)) Ranch, 839, that a confidential relation- of matter 535 842 N.W.2d Mollers Dueben- ship (citations omitted). existed between “The existence of a Second, Instruction 17 they argue dorfer. duty of that fiduciary duty scope and the of with the bur- the burden confused of law for the court.” Id. questions are with the evidence. going of forward den Dakota, Therefore, in South as matter of law, fiduciary relationship exists whenev in- jury “construe[s] This Court [¶ 24.] attorney pro- power to learn er a of is created. structions as whole of the full and correct statement vided a ¶ 96, 14, 704 This has held Kappenman, 27.] Court [¶
law.” Further, party charg- “the at 40. relationship general N.W.2d that “a confidential given error ing that an instruction synonymous fiduciary relation ly with showing of that the has the dual burden Bank, Fidelity ship.” Buxcel v. First prejudicial. instruction was erroneous 593, if in prejudicial An instruction is erroneous Columbia, v. Centerre Bank Crane of some effect produced all probability (cita 423, (Mo.Ct.App.1985)) S.W.2d and is harmful upon the verdict omitted). Furthermore, a “confiden tion assigning rights substantial any relationship tial is not restricted to 17 a misstate- it.” Id. Instruction Was persons.” Hyde of particular association erroneous? ment the law and therefore 788, Hyde, 78 S.D. N.W.2d argue that Instruc- Mollers first (1959). relationship A ex “confidential question of fact from tion 17 removed placed has trust ists whenever a decedent jury. They assert consideration integrity fidelity and confidence instructing court that the trial erred In the Matter Estate of another.” that, power of attor- because ¶ 16, N.W.2d did exist at ney, relationship a confidential Madsen, 535 (citing In re Estate the execution of the the time of (citations (S.D.1995)) 2002 will. omitted). quotations internal our settled law: Under undisputed It is that the founded on a fiduciary relationship “[a] fiduciary relationship as in a Mollers were placed and trust confidence’ ‘peculiar of the execu as a result of March integrity and faithful one individual attorney by Dueben- power tion of the relationship such ness of another. When equally important, dorfer. In addition exists, ‘duty fiduciary has a to act *8 Kathy individually admit Randy and both of the other. for the benefit’ primarily 30, 2002, until trial that from March ted at ‘Generally, fiduciary relationship, in a the in a each was confi Duebendorfer’s authority or of the other property, interest ” fiduciary relationship with dential fiduciary.’ the charge of placed 113, 12, Kathy testified: Duebendorfer. Lange, 1996 SD Ward you If find that Special Verdict Form. proving of the four tants have burden have not in Instruction No. 16 in these four elements elements set forth one or more of the will was the you order to establish No on proved, shall check been then of the Mollers. of the undue influence result Special Form. Verdict you that all four of these elements If find proved, you check Yes on been shall have Q: agree you proof You also that were in a ma all due execution in facie of cases, and, fiduciary they petitioners, confidential and relation- are also prima death and venue.
ship power with Kenneth once the facie of Contestants a will have the burden attorney of in your was executed of of establishing testamentary lack intent favor on March 2002? influence, fraud, capacity, or undue du- A: Correct. ress, mistake, or revocation. Parties Randy testified: persuasion have the ultimate burden of Q: you agree And that from that time they as to matters with to which respect on, 30, 2002, you March were in a have If proof. the initial burden fiduciary confidential and relation- opposed by petition pro- will is ship with Kenneth? former, revoking bate of a later will Yes, A: I was. it shall be determined first whether the Mollers cannot claim a probate. version of the facts later will is entitled to If a will opposed by they petition more favorable than that to which for a declaration intestacy, testified at it shall be determined first trial. See v. Ameri Overfield Co., whether the probate, can will is entitled to Underwriters Ins. Life 814, 819; Western N.W.2d added). in- clearly This statute Co., States Land & Cattle Inc. v. Lexing dicates that the with the initial bur- (S.D. Co., ton Ins. den of proof has the ultimate burden 1990). Therefore, because Mollers admit Thus, persuasion. proponents they were in a confidential fiduciary will, Mollers, had the ultimate burden of (and relationship with Duebendorfer persuasion as to the “due execution” of the were), clearly it was not error for the trial shift, That will. burden does not re- but jury, court to instruct the as a matter of Conversely, mains with them. the contes- law, such confidential relationship exist tants have the persua- ultimate burden of ed. sion establish undue influence. Because the trial court did not [¶ 31.] Under this Court’s settled in instructing jury err that a confiden- law, “to establish the existence of undue existed, tial relationship we next address influence a will contestant prove must four error; Mollers’ second claim of preponderance elements of the evi trial court improperly instructed the ‘(1) susceptibility dence: decedent’s un regarding (2) influence; due opportunity to exert influence. Mollers assert the trial such influence wrongful pur and effect the court in instructing erred that the burden (3) pose; disposition to do so for an of proof They shifted to them. argue that (4) improper purpose; clearly a result ” only the burden of going forward with the showing the effects of undue influence.’ evidence shifted to them. Dokken, Estate (quoting N.W.2d burdens of par- relative ¶94, 12, at re ties in contested will cases are set forth Elliott, Estate 662-63 provides: statute. SDCL 29A-3-M07 (S.D.1995))). cases, In contested petitioners who seek *9 intestacy establish have the burden of “A presumption [¶ of un 32.]
establishing prima facie of due influence arises ‘when there is a confi venue, heirship. Proponents relationship a dential between the testator of will have establishing pri- beneficiary the burden actively participates who of
447
jury
the
to deter-
of the will This instruction allowed
and execution
preparation
in
¶ 28
1)
mine,
Id.
whether the contestants had es-
unduly profits therefrom.’”
¶
Unke,
94, 13, 583 N.W.2d
actively partici-
that Mollers had
(citing
tablished
Madsen,
at
535 N.W.2d
(quoting
at 148
in the
and execution of
pated
preparation
arises,
892)).
2)
the
presumption
will,
this
they unduly profit-
“When
and whether
beneficiary to
he
to the
show
burden shifts
only
It
after
ed from their actions.
advantage
unfair
of the decedent.”
took no
jury
that
making
findings
these two
Unke, 1998
583
(citing
SD
Id.
presumption
was instructed a
Metz,
In
(citing
at
re Estate
N.W.2d
148
per
influence was established. As
of
393,
N.W.2d
S.D.
II,
Dokken, Unke,
holdings of
and Smith
(1960))).
addition,
finding of
“[t]he
then shifted to Mollers to rebut
the burden
the burden
relationship shifts
confidential
presumption.
this
beneficiary]
prepon
to show
to [the
jury
in
was then further
[¶ 34.]
took
[he/]she
of the evidence
derance
if
not
they
found Mollers did
structed
in
advantage
decedent]
of [the
no unfair
they were to check
presumption,
rebut this
In re Estate
will[.]”
creation of the
However,
form.
yes
special
on the
verdict
(S.D.
II),
80,
(Smith
520 N.W.2d
Smith
1) Mol-
jury
if the
determined that either
(Smith
1994) (citing In re Estate
Smith
actively participate
lers did not
(S.D.1992)).6
I),
2)
and execution of the
or
preparation
However,
going
forward
“the burden
it,
they
unduly profit
not
from
i.e.
did
in
influence
evidence
an undue
with the
presumption,
jury
were
rebutted the
un
beneficiary
case does not shift
contestants “have
then instructed
of undue influence is
presumption
less a
the four elements
proving
the burden of
Dokken,
established.”
in Instruction No. 16
order to
set forth
(citing
at 495
N.W.2d
that the will was the result
establish
148)
at
Thus,
Mollers.”
undue influence of the
omitted).
on the
remained]
“the ultimate burden
17 instructed
Instruction
prove
person contesting the will
a confidential rela
that because
prepon
influence
elements
undue
existed,
they
Mollers must show
tionship
Unke, 1998 SD
of the evidence.”
derance
advantage
no unfair
of Duebendorfer
took
¶94, 13,
at
Mad
and execution of his
preparation
sen,
in the creation MEIERHENRY, that undue KONENKAMP finding or defeat a rebut Justices, concur. influence exists. adoption SDCL 29A-3-407. predate the
6. Smith I and Smith II *10 — ZINTER, Weast, Justice, concurs in ex rel. v. [¶ 38.] U.S. Schaffer Schaffer -, -, part and concurs in result. 126 163 L.Ed.2d S.Ct. (2005) (quoting Strong, J. McCor MILLER, Justice, Retired [¶ 39.] (5th § mick on Evidence at 433 ed. SABERS, Justice, sitting disqualified. 1999)). due, difficulty part, in ZINTER, historically the fact that the has (concurring part Justice term “en result). compassed two distinct burdens: the ‘bur concurring i.e., persuasion,’ party
den of which loses if I balanced, closely the evidence is and the ie., production,’ ‘burden of which I [¶ 40.] concur on issue and that obligation bears the to come forward with part concluding issue that there was points the evidence at different in the pro in instructing jury no error that a (citation omitted). ceeding.” Id. at 533-34 relationship confidential existed. As the Co., Brewing McKiver Theo. Hamm out, points Court Mollers admitted explained this the importance Court of this relationship, there was a confidential presumption distinction cases where a therefore, they position are in no argue causes the of going burden forward with appeal. otherwise on the evidence to shift: However, disagree I with going This burden of forward with the analysis Court’s proof. on the burden of evidence differs from the burden of ¶¶ supra disagree 29-35. I because proof. presumption A upon casts part “FIRST” of Instruction 17 in- person against applied whom it is structed the that if a presumption of duty go forward with the evidence on arose, undue influence the ultimate “bur- point presumption to which the re- proof’ den of shifted from the contestants lates. proof, meaning The burden of (Hinds al.) (Mollers) proponents et to the duty establishing the truth of a claim However, of the will. under SDCL 29A- quantum proof such as the law 3-407, the proof ultimate burden of requires, upon rests the party having undue influence was on the contestants. the affirmative of an issue. The latter And, (Rule 301), under SDCL 19-11-1 trial, never during shifts the course of a even though in- undue while going forward with fluence going shifted the burden of for- may the evidence shift. ward with the proponents, evidence to the (1941) proof the ultimate burden of S.D. 297 N.W. should have Lohr, Therefore, remained with Peters v. the contestants. S.D. (1910)). part this N.W. shifting Considering of Instruction this distinction, ultimate proof propo- burden of to the the issue is whether nents, part providing was erroneous as a “FIRST” of Instruction matter of law. Nevertheless, because it was “the burden of shift[ed] harmless er- ror, Mollers,” erroneously I concur in result. shifted to them the persuasion
ultimate burden of on undue influence. II The initial problem this case In determining whether an in- defining erroneous, proof’ the “burden of that shift- struction is “our standard of ed under Instruction 17. “The term ‘bur- requires review us to construe in- [the den of ‘slipperiest is one of the they pro- as a whole to find ‘if structions] ” family legal member[s] terms.’ vided a full and correct statement of the
449
”
Enters.,
that
Sales
meant
the contestants bore
v. Schwan’s
elements
law.’ Steffen
of
In-
Inc.,
persuasion.
the ultimate burden
617
Bank v.
provided:
struction 16
“To establish
First Premier
(quoting
Kolcraft
influence,
Inc.,
Enters.,
92, 40,
of undue
the contes-
686
existence
N.W.2d
SD
omitted)).
(citations
greater convincing
reviewing
prove
In
tant must
430, 448
whole,
help-
force of the evidence four elements....”7
jury instructions as
Similarly,
emphasized
Instruction 15
part of
compare the “SECOND”
ful
bore the ultimate burden
undue influ-
the contestants
dealing
with
Instruction
Thus,
jury was cor-
persuasion.8
of
with the “FIRST”
general,
cases
ence
15,16,
rectly instructed
Instructions
dealing
with the
of Instruction
part
of 17 that the contes-
part
influence when
“SECOND”
tants bore the
persua-
ultimate
of
burden
relationship arises.
confidential
sion on undue influence.9
of
In-
part
The “SECOND”
contrast,
part
In
the “FIRST”
correctly
informed the
struction
undue influ-
had the burden
dealing
of Instruction
with
that “the contestants
incor-
relationships,
ence in confidential
set
forth
proving
the four elements
rectly
persuasion
shifted the burden of
to establish that
order
Instruction
proponents.
from the contestants
influ-
was the result
undue
the will
added.)
pre-
The instruction indicated that
(Emphasis
of the Mollers.”
ence
Furthermore,
of undue influence arose under
sumption
15 and 16 indi-
Instructions
test,10
the bur-
relationship
“proving” the
the confidential
cated
side of an issue has the
evidence on either
Jury
16 stated:
7.
Instruction
force,
convincing
your finding
greater
then
influ-
the existence of undue
To establish
against
upon
must be
the issue
ence,
prove by
must
the contestant
proving it.
has the burden of
who
convincing
of the evidence
greater
force
elements:
four
noted:
9. This Court has
(1)
question
Will under
That at the time the
signed by
Due-
prepared and
Kenneth
law, to establish the exis-
Under our settled
bendorfer,
susceptible
in-
to undue
he was
influence a will contestant
tence of undue
fluence;
preponder-
prove four elements
must
(2)
Randy
Respondents,
Moller
That the
"(1) decedent’s sus-
ance
the evidence:
Moller,
opportunity
Kathy
had sufficient
influence; (2) opportu-
ceptibility to undue
wrongful
and effect the
exert such influence
nity
influence and effect the
to exert such
purpose;
(3) disposition
wrongful purpose;
to do so
(3)
Respondents,
Moller and
(4)
That
improper purpose; and
a result
an
for
Moller,
disposition
had a
to do so
showing
influ-
clearly
the effects of undue
purpose;
improper
an
ence.”
(4)
produced
a result was
That
Estate
Matter
Will,
the effects of
which shows
added) (cit
such influence.
Elliott,
ing
Matter
Estate of
(S.D. 1995)).
also SDCL
662-63
Jury
Instruction 15 stated:
have
(stating
the contestants
29A-3-407
actions,
establishing
party who asserts the
undue in
In civil
the ultimate burden
fluence).
prove
issue must
that issue
affirmative of an
convincing
the evidence.
by greater
force of
provide
burden
jurisdictions
that the
10. Some
convincing
that after
Greater
force means
relationship
simply when a confidential
sides there is
shifts
weighing the evidence on both
Douglas H.
J. Bowe &
you
exists. 3 William
enough
that some-
evidence to convince
29.80,
(3d
Parker,
§
at 706
ed.
Page on Wills
likely
thing more
true than not true.
jurisdictions
that the exis-
hold
evenly
Other
that the evidence is
bal-
the event
relationship does not
say
tence of a confidential
you
that the
anced so that
are unable
*12
Mollers,
proof
propo-
den
shifted to
the
suasion” on undue influence. SDCL 29A-
of
3-407,
Instruction 17
nents.
stated:
supra
see
30.11
is not rec-
What
ognized
though
is that even
the creation of
presumption
this
of undue influ-
[W]hen
a presumption of undue influence shifts
arises,
proof
ence
the burden
to
of
shifts
going
the burden of
forward with the evi-
the Mollers to show that
took no
dence, it does not shift the ultimate burden
advantage
unfair
of Kenneth Thomas
(Rule 301)
persuasion.12
of
SDCL 19-11-1
Duebendorfer
the creation of the will
clearly explains that:
in order to
finding
rebut or defeat a
undue influence exists.
presumption imposes
party
on the
against whom it is directed the burden
added.)
(Emphasis
an
This was
incorrect
of
going
with
to
evidence
rebut or
because,
statement of the law
under In-
forward
presumption,
meet the
but does not
structions 15 and
this
the ulti-
shifted
shift
party
such
the burden
persuasion
propo-
mate burden of
of
sense
the risk
acknowledges,
nonpersuasion,
nents. As the Court itself
of
of
requires
SDCL 29A-3-407
which
throughout
upon
the contes-
remains
the trial
carry
tants
per-
“ultimate burden of
on whom
originally
it was
cast.
shift the
inconsistently
propo-
burden "in the absence of evidence
states that it shifts to the
imposition”
of other facts of
such as when the
nents.
beneficiary
part
preparing
takes "an active
the will.” Id. at 707.
doubt,
12. No
our case law has
been
source
point.
of confusion on this
See
n. 15.
infra
jurisdiction,
In this
the existence of a confi
However,
clarify
we should
that the creation
not,
itself,
relationship
dential
does
in and of
presumption only
of a
shifts the burden of
presumption
create a
of undue influence.
going forward with the evidence. This Court
presumption
The
of undue influence does
has stated:
beneficiary actively participated
arise if the
preparation
and execution of the will and
relationship]
[a
Once
confidential
ha[s]
unduly profited therefrom. Matter
Estate
of
established,
'going
been
"the burden of
for-
Elliott,
(S.D.1995);
13. The
compelling
jury
long-standing
of law
change
South Da-
invoke
rule
1978 did not
evi
shifting
reach the conclusion in the absence of
effect of
kota law on the burden
contrary
opponent."
from the
dence to the
presumption.
Court remarked in
As this
place
presumption takes the
of evidence
A
1967:
appears
“unless and until evidence
anything,
presumption is not evidence of
"A
it,
or rebut
and when evidence
overcome
only
to a rule of law as to which
relates
quality appears
to rebut it
sufficient
produce
party
go
shall first
forward
disappears
thereafter the
presumption
sustaining a matter in issue. A
evidence
depends upon
determination of the issues
place
presumption
as and in the
will serve
requirement as in
the evidence with the
party
favor of one
or the
of evidence in
having
party
civil actions that
other
prima
been
until
facie evidence has
other
the issue involved in or
the affirmative of
pre-
opposite party; but the
adduced
position by
his
der to succeed shall sustain
placed
sumption should never be
in the
preponderance
the evidence.” In re
pre-
weighed
scale to be
as evidence.
Estate,
568, 35 N.W.2d
Drake’s
150 Neb.
opposite party
pro-
sumption,
has
when the
417, 423 [1948].
evidence,
spent
prima
has
its
duced
facie
Co.,
King
Const.
83 S.D.
v. Johnson Bros.
purpose, and the
force and served its
183,
69, 75-76,
(1967).
186-87
155 N.W.2d
then,
oper-
presumption
in whose favor the
ated,
opponent’s prima facie
must meet his
analogous
decided
the Ne-
In an
case
14.
evidence,
presump-
Court,
and not
evidence with
jury instructions
Supreme
braska
presumption
not evidence of a
tions. A
persuasion on the con-
placed the burden of
fact,
McGowan,
596,
purely a
Peters v.
but
conclusion.”
197 Neb.
testants. Estate of
Lohr,
853,
However,
234,
601,
(1977).
N.W.
855
24 S.D.
(1910).
argued
“the establish-
the contestants
presumption
was dis
The function of
the burden of
presumption
of the
shifted
ment
by Judge Rudolph Honrath v. New
proponent.”
cussed
Id. The
proof from
[them]
Co.,
480,
65 S.D.
York
Insurance
instruc-
Nebraska Court concluded
Life
480,
erroneous,
(1937),
holding
a will
65 S.D.
275 N.W.
"in
N.W. 258
258,
tions were not
1272,
proof or the risk of
and Headlee v. New
the burden of
112 A.L.R.
contest
Co.,
issue of undue influ-
nonpersuasion
S.D.
on the
York
Ins.
Life
(1943),
and remains there
quoting extensively
Wig-
is on the contestant
from
ence
604-05,
Ed.,
Evidence,
at
throughout
§
the trial.”
Id.
"the
more on
3rd
N.W.2d at 239.
peculiar
'of law'
effect of
however,
analysis,
In the final
I
facts this case satisfied those Moreover,
as a matter of law. the evi- confi-
dence influence under the relationship theory
dential was even more Moller,
persuasive. See Bienash v. Considering case,
strength of the evidence this Mol-
lera have failed to demonstrate that instruction,
erroneous in all probability,
produced some effect the verdict and
was harmful to their rights. incorrectly though beneficiary
15. Smith I and
II
Smith
both
state
introduces evidence
finding
of a
"[t]he
confidential relation-
rebutting
presumption.”
353 N.W.2d at
ship
beneficiary]
shifts the burden to [the
language
351. This
should also be overruled
by preponderance
show a
the evidence that
light
provides
of Rule
which
advantage
she took no unfair
testa-
[the
substantial,
"[w]hen
credible evidence has
I,
tor].” Smith