Will Contest

The purpose of making a will is for the decedent to leave instructions as to what they want to happen to their property once they pass away. A will can also name the person who would take care of their minor children. If the will is prepared and executed in the manner required by South Dakota law, it is a legally enforceable document. Upon the decedent’s death, the will is filed with the Probate Court (Circuit Court) along with a petition to probate the will. The filing of the will triggers notification to those who have an interest in the estate which may in turn trigger a will contest.

Who Can Contest It Will

Under South Dakota law, any interested person such as beneficiaries of the contested will, beneficiaries of a prior will, or heirs may contest a will. They are considered interested persons because they have a financial or enforceable interest that would be affected if the contested will was admitted to probate.

Procedure for Contesting a Will

The person wishing to contest the will must do so my submitting their objections in writing to the court. The burden is on the contestant to establish the invalidity of the will by showing evidence of lack of testamentary capacity, undue influence, fraud, duress, mistake, or revocation.

  • Lack of testamentary capacity. South Dakota law requires that a testator must have been “of sound mind” at the time that they executed the will. This means that the testator must have been mentally competent. The objectant must produce evidence that at the time they executed the will, the testator suffered from dementia or someone other condition that impacted their cognition to the extent that they were not competent to make a will.
  • Undue influence. Undue influence occurs when a testator was manipulated into making a will. This is often the case when the testator is vulnerable due to being ill, being elderly, or being isolated and relies on a family member or caregiver for care or companionship. The person on whom the testator relies takes advantage of the vulnerable testator and manipulates them into making a will that is favorable to the manipulator.
  • Fraud. A will is fraudulent if it was signed by someone other than the testator without the testator’s knowledge. It would also be fraudulent if its terms were based on someone intentionally providing the testator with untrue information.
  • Duress. It is illegal to force someone to make a will by using threats or violence. A will must be made out of free will, otherwise it would not be valid.
  • Revocation. If the will was revoked, then it is no longer valid. A will can be revoked by the testator executing a new will or by executing a document revoking the will. It can also be revoked by an act of the testator that intentionally destroys the will such as ripping it up, burning it, or by some other act that clearly shows the intent of the testator to revoke it. If the objectant argues that the there is a later will, the objectant must show that the later will is entitled to probate. SD Codified L § 29A-3-407.

Consequences of a Will Contest

If a will is determined to be invalid the court would have no choice but to deny probate. Unless another will is produced that is determined to be valid, the estate would be intestate and would be distributed according to South Dakota’s law of intestate succession. SD Codified L § 29A-2-101. This means that instead of the property going to specifically identified family, friends, or institutions, estate property would go to family based on an order of priority. The primary heirs would be the decedent’s surviving spouse and children.

Forfeiture Clause

A “forfeiture clause” is a provision in a will or trust that results in a forfeiture by a beneficiary if the beneficiary contests the will or trust. In South Dakota forfeiture clauses are generally enforceable if the contest is not made in good faith.

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