#24072-a-JKM
2007 SD 46
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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ESTATE OF BRIAN LEE GUSTAFSON, Deceased.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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HONORABLE KATHLEEN K. CALDWELL
Judge
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SHAWN M. NICHOLS of
Cadwell, Sanford, Deibert &
Garry, LLP Attorneys for appellant
Sioux Falls, South Dakota Suzanne Gustafson.
THOMAS E. ALBERTS
Avon, South Dakota
BRADLEY D. KERNER of
Kerner Law Office Attorneys for appellees
Armour, South Dakota Jan Klahs and Steve Gustafson.
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CONSIDERED ON BRIEFS
ON MARCH 19, 2007
OPINION FILED 05/02/07
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MEIERHENRY, Justice
[¶1.] After Brian Lee Gustafson (Decedent) died, his siblings filed a Petition
for Adjudication of Intestacy, Determination of Heirs, and Appointment of Personal
Representative (Petition of Intestacy). Decedent’s former wife, Suzanne Gustafson
(Suzanne), objected and argued that a copy of Decedent’s will should defeat the
claim of intestacy. The trial court granted the petition and denied Suzanne’s
objection. Suzanne appeals and we affirm.
FACTS
[¶2.] Decedent died July 20, 2005, in his fifth wheel trailer near Phoenix,
Arizona at the age of sixty-one. After a career in education, Decedent retired two
and one half years prior to his death. Decedent had been married twice during his
lifetime but was single at the time of his death. In the last few years of his life,
Decedent had been aloof and distant from his friends and family.
[¶3.] After Decedent’s death, his sister Jan Klahs (Klahs) found a copy of an
unsigned will executed in 1985, among his personal effects, all of which he kept in
his fifth wheel trailer. Klahs gave the copy to her attorney in South Dakota, who
continued looking for the original, without success. The copy indicated that
Decedent had executed a will on July 3, 1985, in Des Moines, Iowa, which named
Suzanne Raisch as the sole beneficiary. Suzanne Raisch became Suzanne
Gustafson upon her marriage to Decedent in April of 1986. The couple divorced on
August 10, 2000, and had little contact after the divorce. Klahs’ attorney contacted
Suzanne about the 1985 will, and Suzanne told him that she was not aware of its
existence.
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[¶4.] The main issue before the trial court was whether Decedent intended
to revoke the 1985 will. At the hearing on the matter, Klahs testified that in 2004,
she specifically asked Decedent whether he had a will and he told her that he did
not. Suzanne testified that she and Decedent had discussed making a will when
they were married but never actively pursued the idea. Suzanne claimed that
Decedent had contacted her after their divorce and told her that he still wanted to
provide for her and her children.
[¶5.] After hearing all of the evidence, the trial court concluded that the
original will had not been found despite a “careful and exhaustive search.” The trial
court also found that Suzanne had not presented sufficient evidence to rebut the
presumption that Decedent had revoked the lost original will. Accordingly, the trial
court granted the Petition of Intestacy pursuant to SDCL 29A-3-402(d).1
[¶6.] Suzanne appeals and raises the following issue.
ISSUE
Whether the trial court erred in granting the Petition of
Intestacy based on the finding that Suzanne had not presented
sufficient evidence to rebut the presumption that Decedent had
revoked the original will.
STANDARD OF REVIEW
[¶7.] “We review a trial court’s finding that a lost will has been revoked
under the clearly erroneous standard.” In re Estate of Long, 1998 SD 15, ¶9, 575
NW2d 254, 255 (quoting In re Estate of Modde, 323 NW2d 895, 898 (SD 1982)).
1. The trial court did not reach the issue addressed by the concurrence of
whether the will was automatically revoked as a result of Decedent and
Suzanne’s divorce because the trial court concluded that Suzanne failed to
overcome the revocation presumption in SDCL 29-3-402(d). Consequently,
that issue was not raised on appeal to this Court.
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Under the clearly erroneous standard, the question for this
Court is not whether we would have made the same findings
that the trial court did, but, whether on the entire evidence, we
are left with a definite and firm conviction that a mistake has
been committed. That this Court may have found the facts
differently had we heard the testimony is no warrant for us to
substitute our judgment for the trial court’s carefully considered
findings.
Id. (quoting Guardianship and Conservatorship of Lanning, 1997 SD 81, ¶9, 565
NW2d 794, 796).
ANALYSIS
[¶8.] South Dakota law allows a copy of a will to be admitted to probate if
“at least one credible witness” can testify that “the copy is a true copy of the
original.” SDCL 29A-3-402(d). Additionally, the law requires that the court must
be “reasonably satisfied that the will was not revoked by the testator.” Id. The
statute provides in relevant part as follows:
If the original will, or certified copy of the will as probated in
another jurisdiction, is not available, the contents of the will can
be proved by a copy of the will and the testimony or affidavit of
at least one credible witness that the copy is a true copy of the
original, and the will may be admitted to probate if the court is
reasonably satisfied that the will was not revoked by the
testator.
Id.
[¶9.] In Estate of Long, we recognized that “the presumption that a lost will
has been revoked” was codified in SDCL 29A-3-402(d). 1998 SD 15, ¶14, 575 NW2d
at 256 (stating that the presumption is evident by the express language of SDCL
29A-3-402(d)). The presumption arises when a careful and exhaustive search fails
to produce the original will. Estate of Modde, 323 NW2d at 898. The presumption
may be rebutted by evidence, circumstantial or otherwise, which “reasonably
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satisfie[s]” the trial court that the will was not revoked. SDCL 29A-3-402(d). The
“reasonably satisfied” standard of proof is low and requires a “minimal level of
certainty.” State v. Bailey, 464 NW2d 626, 628 (SD 1991) (discussing reasonably
satisfied standard of proof in the context of probation). Consequently, when the
original will was not located, Suzanne had the burden of overcoming the
presumption that the Decedent had revoked it.
[¶10.] Suzanne argues that the presumption should not apply because Klahs
failed to conduct a “careful and exhaustive search” for the original will. Suzanne
contends that the search was not exhaustive because Klahs failed to contact any of
the four witnesses to the execution of the original will, who may have been able to
provide knowledge of the will’s drafter or its possible location. Klahs testified that
she searched through all of Decedent’s belongings and failed to find anything but
the copy of the 1985 will. She promptly provided the copy to her attorney, who was
unable to locate the original. The trial court was in the best position to judge the
credibility of the witnesses. Edinger v. Edinger, 2006 SD 103, ¶15, 724 NW2d 852,
854. Thus, we cannot say that the trial court’s finding that Klahs conducted a
careful and exhaustive search was clearly erroneous.
[¶11.] Suzanne also argues that the trial court erred when it concluded that
she failed to rebut the presumption that the lost will had been revoked. Suzanne
argues that the trial court should not have granted the Petition for Intestacy
because there was no evidence that Decedent ever intended to revoke the 1985 will.
Suzanne, however, misses the effect of a legal presumption. The effect of a
presumption of law is “to invoke a rule of law compelling the [factfinder] to reach
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the conclusion in the absence of evidence to the contrary from the opponent.” In re
Estate of Duebendorfer, 2006 SD 79, ¶45, 721 NW2d 438, 450 (Zinter, J.,
concurring) (additional citations omitted). We explained the burden of proof needed
to overcome the presumption as follows:
[A] presumption imposes on the party against whom it is
directed the burden of going forward with evidence to rebut or
meet the presumption, but does not shift to such party the
burden of proof in the sense of the risk of nonpersuasion, which
remains throughout the trial upon the party on whom it was
originally cast.
Id. (quoting SDCL 19-11-1). While the presumption did not alter the ultimate
burden of persuasion, it did oblige Suzanne to come forward with evidence to rebut
the presumption. She provided little evidence of rebuttal.
[¶12.] First, Suzanne admitted that she was not aware that Decedent had
executed the 1985 will. She claimed they had talked about executing a will during
the marriage but had not done so. Second, Suzanne testified that she had only
spoken to the Decedent once since their divorce five years ago. Although Suzanne
claimed that shortly after their divorce Decedent told her he wanted to provide for
her children, the trial court noted that the conversation contradicted Suzanne’s
argument because the 1985 will only named Suzanne as the sole beneficiary. Thus,
if Decedent had wanted to provide for Suzanne’s children, he would have had to
revoke or amend the 1985 will.
[¶13.] “The credibility of the witnesses, the import to be accorded their
testimony, and the weight of the evidence must be determined by the trial court,
and we give due regard to the trial court’s opportunity to observe the witnesses and
examine the evidence.” In re Estate of Schnell, 2004 SD 80, ¶8, 683 NW2d 415, 418.
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Suzanne had the burden to overcome the presumption that the will had been
revoked. Estate of Long, 1998 SD 15, ¶15, 575 NW2d at 257. Considering the
limited evidence Suzanne offered, the trial court’s finding that Suzanne failed to
overcome the presumption that the lost original will was revoked was not clearly
erroneous.
[¶14.] Affirmed.
[¶15.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,
Justices, concur.
[¶16.] SABERS, Justice, concurs specially.
SABERS, Justice (concurring specially).
[¶17.] I write specially to point out that the issue whether the trial court
erred in determining the will was revoked is moot. SDCL 29A-2-804 indicates that
any property dispositions in the 1985 will from Brian to Suzanne were revoked due
to the subsequent divorce. The statute provides in relevant part:
(b) Except as provided by the express terms of a governing
instrument, a court order, or a contract relating to the
division of the marital estate made between the divorced
individuals before or after the marriage, divorce, or
annulment, the divorce or annulment of a marriage:
(1) Revokes any revocable (i) disposition or appointment
of property made by a divorced individual to a former
spouse in a governing instrument . . . .
SDCL 29A-2-804.
[¶18.] Therefore, if the will was revoked, Brian and Jan would take all
through the rules of intestacy. If the will was not revoked, then they would take as
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the sole contingent beneficiaries of the will because SDCL 29A-2-804 revokes any
property dispositions to Suzanne in the will.
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