Probate Disputes

A probate dispute is a disagreement that occurs during the estate administration process. A dispute can occur between any of a number of parties who have an interest in the estate including the personal representative, other fiduciaries, beneficiaries, heirs, and creditors. When the parties are unable to resolve the conflict, it can lead to litigation that must be settled by the Probate Court judge. Disputes during the administration process can have a significant impact on the probate proceedings. Not only can they be costly to the estate, they can also lengthen the process.

Will Contest

A will is a legally enforceable document that represents the wishes of the testator. If there is evidence that a will is not valid, the court will not probate it. Interested parties who believe that a will should not be probated have the right to contest the will by submitting a written objection that states the reason for the objection. Legally acceptable reasons include lack of testamentary capacity, undue influence, fraud, duress, mistake, and revocation. SD Codified L § 29A-3-407.

  • Lack of testamentary capacity. The testator was mentally incompetent at the time they executed the will. This often means that the testator suffered from a medical condition such as dementia and as a result did not understand the impact of executing a will.
  • Undue influence. The testator was illegally manipulated by someone who used their position of trust with a vulnerable testator to convince the testator to leave them an inheritance.
  • Fraud. The will was based on misinformation intentionally provided to the testator in order to manipulate the testator into making a will they would not have otherwise made.
  • Duress. The will was made only because the testator felt threatened.
  • Mistake. The will was made based on information or circumstances about which the testator was mistaken.
  • Revocation. The will was effectively revoked, making it invalid.

Successful will contests can result in a prior or later valid will being probated. A successful contest can also result in the estate being declared intestate. As a result, its assets would be distributed to the decedent’s next of kin based on the rules of intestate succession. Typically this means that the decedent’s spouse and surviving children receive all of the estate assets. In the absence of either, other relatives would inherit based on a statutory order of priority. SD Codified L § 29A-2-101 et seq.

Breach of Fiduciary Duty

Fiduciary litigation is initiated when a beneficiary, heir, or other interested party believes that a fiduciary has acted improperly. Common reasons for fiduciary litigation include:

  • Improper investment
  • Unauthorized self-dealing
  • Accounting controversies
  • Failure to follow the terms of the will
  • Failure to perform duties are required

If the personal representative is found to have breached their duty, they would be liable to the estate for damage or loss resulting from their improper actions. SD Codified L § 29A-3-712

Elective Share Disputes

In South Dakota, married persons are entitled to receive a portion of their spouse’s estate. They cannot be completely disinherited. Based on the terms of the will and how it provides for the decedent’s surviving spouse, the surviving spouse may choose to take an “elective share” in lieu of the provision made in the will. The amount of the elective share is determined by the length of the marriage.

The spouse has 9 months after the decedent’s death or 4 months after the will was admitted to probate to make the election. If there is a disagreement about the amount of the elective share or whether the surviving spouse made the election, the court may have to step in and settle it.

Kinship Hearings

A kinship hearing is a proceeding to determine the right to inherit. Such hearings are usually held when there is a question about the entitlement to inherit of someone making a claim to an intestate estate. A court will not authorize distribution to someone unless that person has proven relatedness and their right to inherit under South Dakota’s rules of descent and distribution. SD Codified L § 29A-2-101 et seq.

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