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In re Estate of Heibult - 2002 S.D. 128, 653 N.W.2d 101

Rule:

The intent of the testator is the ultimate factor in settling a will contest.

Facts:

In 1990, decent Anna Heibult executed a will (“1990 South Dakota will”) devising a larger portion of her property to Ronald, her youngest son. After execution, the will remained in decedent attorney’s possession. In June 1991, decedent traveled to California to visit her three children. During the visit, a new will (“1991 California will”), which divided the decedent’s estate equally among the four children, was executed. That evening, the three children started a fire in the backyard, purportedly to “celebrate” by burning the 1990 South Dakota will. However, the decedent, without the knowledge of the three children, burned the 1991 California will instead of burning the 1990 South Dakota will. Upon the decedent’s death, the three children filed a petition for adjudication of intestacy, determination of heirs, and appointment of a personal representative. Ronald resisted the petition for intestacy and filed a petition for formal probate of the 1990 South Dakota will. The court granted Ronald’s petition to probate the 1990 South Dakota will. On appeal, the three other children questioned the sufficiency of evidence to establish the revival of the 1990 South Dakota will.

Issue:

Was there sufficient evidence to establish the revival of the 1990 South Dakota will, which was followed by the execution of a 1991 California will?

Answer:

Yes.

Conclusion:

The appellate court affirmed the grant of the younger sibling's petition to probate the 1990 will. Under South Dakota law, if a subsequent will that wholly revoked a previous will was thereafter revoked by a revocatory act under § 29A-2-507(a)(2), the previous will was revived only if it was evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent statements that the testator intended the previous will to take effect as executed. In the case at bar, it was evident from the circumstances surrounding the 1991 California will's revocation, as well as from decedent’s subsequent statements, that she intended the 1990 South Dakota will to take effect as executed. Decedent intentionally misled her other children regarding both wills. The 1990 South Dakota will was never burned, the 1991 California will was never found, the deeds were never transferred, and the trust was never funded. All of this was in direct contradiction to decedent’s representations to her three children. Accordingly, the 1990 South Dakota will was revived, and the trial court’s admission of it to probate was proper. 

As for the applicable standards of review: On appeal in a will contest, all conflicts in the evidence must be resolved in favor of the trial court's findings. The appellate court no longer reviews documentary evidence de novo. South Dakota statutory law provides that findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous.

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