In Re the Estate of Heibult
653 N.W.2d 101, 2002 S.D. LEXIS 147, 2002 SD 128 (2002)
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Rule of Law:
Under South Dakota law, if a subsequent will that wholly revoked a previous will is itself revoked by a revocatory act, the previous will is revived only if it is evident from the circumstances of the revocation or from the testator's statements that the testator intended the previous will to take effect.
Facts:
- Anna Heibult had four children; Ronald remained in South Dakota to run the family farm and care for her, while her other three children lived in California.
- In 1990, Anna executed a will prepared by her attorney, John Burke, which devised a significantly larger portion of the family farm to Ronald. Burke retained the original will.
- In 1991, while visiting her children in California, Anna executed a new will and trust that divided her property equally among all four children and revoked all prior wills.
- Upon returning to South Dakota with her daughter Georgiann, Anna led Georgiann to believe she was placing the 1991 will in a safe deposit box, transferring deeds into the new trust at the courthouse, and burning the 1990 will in a backyard fire.
- In reality, Anna had only obtained copies of her late husband's death certificate at the courthouse, the trust was never funded, and the 1990 will remained safely with her attorney.
- In 1993, Anna met with her attorney, Burke, and told him she had intentionally burned the 1991 California will and deceived her other children. She asked what was needed to ensure the 1990 will remained in effect, and he advised her nothing further was necessary.
- After Anna's death in 2000, no original or signed copy of the 1991 California will could be found.
Procedural Posture:
- Anna Heibult died in February 2000.
- Her three children from California, Calvin, Georgiann, and Melba, filed a petition for adjudication of intestacy in the South Dakota circuit court.
- Her son, Ronald Heibult, filed a petition for formal probate of Anna's 1990 will in the same court.
- The California siblings filed a motion to exclude the testimony of Anna's attorney, John Burke, which the circuit court denied.
- After a trial, the circuit court granted Ronald’s petition to probate the 1990 will.
- The three California siblings, as appellants, appealed the circuit court's decision to the Supreme Court of South Dakota.
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Issue:
Does the revocation of a subsequent will revive a prior will when circumstances and the testator's statements indicate an intent for the prior will to take effect?
Opinions:
Majority - Gilbertson, Chief Justice
Yes. When a subsequent will is revoked, a prior will is revived if it is evident from the circumstances or the testator's statements that the testator intended for the prior will to take effect. Here, the court applies the presumption that a will that cannot be found was intentionally destroyed by the testator with the intent to revoke it. The siblings failed to rebut this presumption regarding the 1991 California will. The court then found sufficient evidence of Anna's intent to revive the 1990 will based on both the circumstances of the revocation and her subsequent statements. The circumstances included her elaborate deception of her other children regarding the burning of the 1990 will and the funding of the 1991 trust. Her subsequent statements to her attorney, Burke, in 1993, explicitly confirmed her desire for the 1990 will to control her estate. Combined with the legal presumption in favor of testacy over intestacy, the evidence strongly supported the conclusion that Anna intended to revive the 1990 will.
Analysis:
This case illustrates the modern statutory approach to the revival of wills, which departs from the common law's automatic revival doctrine. The decision emphasizes that the testator's intent is the paramount consideration, and courts will look to extrinsic evidence, including the testator's actions and statements, to determine that intent. This precedent solidifies that in jurisdictions with similar statutes, circumstantial evidence of a testator's wishes can overcome the revocation of a prior will by a subsequent, now-missing will. It also reinforces the power of legal presumptions, such as the presumption of revocation for a lost will and the presumption in favor of testacy.
