In the Matter of Estate of Pringle

#24506-a-DG

2008 SD 38

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
In the Matter of the Estate of
MARY LOUISE PRINGLE,
Deceased.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE A.P. FULLER
Judge

* * * *

ERIC J. PICKAR
GREGORY J. ERLANDSON
ALLEN G. NELSON of
Bangs, McCullen, Butler,
Foye and Simmons, L.L.P.
Rapid City, South Dakota Attorneys for appellants
interested person Judith
Maxwell & Thomas Pringle.

BRIAN L. UTZMAN of
Smoot & Utzman, P.C.
Rapid City, South Dakota Attorneys for appellee
Ronald H. Pringle.

* * * *

ARGUED JANUARY 9, 2008

OPINION FILED 05/28/08
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GILBERTSON, Chief Justice

[¶1.] On February 20-22 and 27, 2007, a trial was held in the South Dakota

Seventh Judicial Circuit to decide the validity of land conveyances executed by

Mary Louise Pringle (Mary) prior to her death and whether to admit for probate her

last will and testament dated September 26, 2000. On March 27, 2007, the circuit

court entered findings of fact and conclusions of law and on April 2, 2007, it entered

its judgment and order validating the land conveyances and admitting the will to

probate. Mary’s children, Judith Maxwell (Judy) and Thomas Pringle Jr. (Tom),

appeal. We affirm.

FACTS AND PROCEDURE

[¶2.] Mary and Thomas Pringle, Sr. (Tom, Sr.) were married in 1946. The

couple raised four children, Judy, Ronald (Ron), Tom and Charles (Chuck). Mary

and Tom, Sr. farmed in the Bridgewater, South Dakota area and later operated a

laundry in Pierre, South Dakota for many years.

[¶3.] The farming operation consisted of the Pringle homestead quarter

section 1 and three additional quarters totaling 640 acres located in McCook County,

South Dakota near Bridgewater. In the late 1960s Mary and Tom, Sr. turned the

day-to-day farming operations over to Chuck. Chuck managed the farm until 1987.

At that time Ron, who lived in Bridgewater, took over the farming operations.

[¶4.] Mary and Tom, Sr. eventually retired to a home in Hill City, South

Dakota. The couple neighbored in Hill City with Joel and Gloria Pine. Joel was

1. Tom, Sr.’s grandfather homesteaded the “Pringle quarter.”

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retired from the South Dakota Highway Patrol. He had worked in Pierre over the

years and had known Mary and Tom, Sr. from their laundry business.

[¶5.] On February 25, 1988, Mary and Tom, Sr. executed wills. The wills

provided that each spouse was primary beneficiary of the other’s estate, but that if

either spouse predeceased the other, all of the surviving spouse’s real and personal

property would be equally devised to Judy, Ron and Tom. 2 Mary and Tom, Sr. held

their real property in joint tenancy.

[¶6.] On March 18, 1998, Mary signed a power of attorney form “for

healthcare purposes only” that was provided by the Rapid City Regional Hospital.

Judy was designated as Mary’s health care agent. Tom was named first alternate

and Ron was named second alternate. Joel and Gloria Pine served as witness to

Mary’s signature on the document.

[¶7.] On April 13, 1998, Tom, Sr. died. At the trial, Gloria Pine testified

that the death of Tom, Sr. marked the point at which Mary’s physical and mental

health, as well as her personal hygiene began to gradually deteriorate. There is no

dispute that following the death of Tom, Sr., Ron made frequent trips to Hill City to

visit his mother. Several people from the Hill City area who had known Mary,

including Pennington County Sheriff’s Deputy, Jeromey Smith (Deputy Smith), who

had been dispatched to her home repeatedly to check on her well being, and Mary’s

friends and neighbors the Pines, offered testimony that Mary trusted Ron very

much and came to rely on him to a great extent. The two exchanged daily telephone

2. Mary and Tom, Sr. essentially disinherited Chuck over a dispute about his
management of the farm.

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calls to the point that Ron would call his mother before leaving home so that she

would know that she would not be able to reach him for a time.

[¶8.] In August 2000, Mary contacted her long-time attorney Michael Unke

(Unke), a Bridgewater native practicing in Salem, South Dakota, about drawing up

a durable power of attorney and living will (POA). Mary and Tom, Sr. had had a

relationship with Unke that dated back to about 1988 when the couple had retained

him to draft some farm leases. Unke thereafter had regular contact with Mary and

Tom, Sr. Unke testified that Mary had seen a news article about POAs and had

sent it to him and that she sought his opinion as to whether she should have one.

Unke stated that during their discussion, Mary told him that she wanted Ron to

make medical decisions and handle her affairs if she became unable to do so

because she trusted him. Unke drafted the document and sent it to Mary in Hill

City on or around August 18, 2000. The Pines and Neil Holzwarth (Holzwarth),

vice president of First Western Bank in Hill City, testified that Mary subsequently

contacted them and asked them to come to her home for the signing. On August 23,

2000, Holzwarth notarized the document while the Pines witnessed her signature.

Ron was not present.

[¶9.] Earlier in August 2000, Ron and Tom stayed at Mary’s house in Hill

City while attending the Black Hills Motorcycle Rally. While there, Tom drained

the sewage from his motor home into the septic tank at his mother’s house.

According to Ron, he helped Tom remove the cap from the clean-out so that Tom

could run his sewer line into the tank. Ron then left, but told Tom to make sure

that he replaced the cap when finished.

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[¶10.] On September 9, 2000, Tom, who lived in Chamberlain, South Dakota,

received a phone call from Mary, berating him for not properly replacing the cap to

the clean-out, which Tom denied. Tom testified that at the conclusion of this call,

Mary told him, “This was your mother. You’ll never hear from me again.”

Disturbed by the call, Tom contacted Ron to inquire if he knew anything about the

cap and why Mary would have become so agitated. According to Tom, Ron told him

that he had been out policing the property after the Rally and found the cap askew,

straightened it, and also informed Mary. Ron testified that when his mother asked

if Tom was responsible he replied that he did not think so, but rather neighborhood

kids, whom Mary had seen running about the yard recently, could have been

responsible. Tom testified that he did not ever recall asking Ron to help straighten

out the disagreement with his mother. Tom did not speak to his mother again until

2004.

[¶11.] Later on September 9, 2000, Tom contacted Judy to inform her about

the call he had received from Mary. Judy, who lived in Pierre, became very upset

with Mary based on Tom’s account of the call. That same day, Judy called her

mother. According to her testimony, Judy did all of the talking and “didn’t give

[Mary] a chance to say anything.” The telephone call ended when Judy hung up on

her mother. 3 Following the September 9 call, Judy had no contact with her mother

until 2005.

3. Judy testified that the last time prior to the September 9 call that she talked
to Mary had been during a telephone call on the Saturday after July 4, 2000.
Judy characterized that call as “very cold” and considered it the point at
which her relationship with her mother took a “turn for the worse.”

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[¶12.] In mid September 2000, Mary again contacted Unke. According to

Unke, Mary discussed with him her desire to have the McCook County farm pass to

Ron outside her will. Unke testified during a deposition and at trial that “it was

very important to her” that the farm remained intact and in the Pringle name. He

stated that in the past he had conversations with Mary where she indicated to him

that “she was very close to Ron; that he had been handling the farm; and that she

wanted to keep the farm in the family” and that Ron would do so. Conversely, Mary

stated that Judy and Tom, who were not interested in farming “would just sell it to

get the money.”

[¶13.] At Mary’s request, Unke drafted a deed conveying the McCook County

farm to her and Ron in joint tenancy with right of survivorship. Unke also drafted

a new will that expressly set out Mary’s intent to have joint tenancy property pass

outside the will with the remainder of her estate to be divided equally among Judy,

Ron and Tom. Unke sent the documents to Mary under separate covers of

transmittal with instructions for proper execution. 4 Mary again contacted the

Pines and Holzwarth to assist with execution of the documents. On September 19,

2000, Holzwarth came to Mary’s house in Hill City to notarize her signature on the

deed. On September 26, Holzwarth returned to Mary’s house to notarize her

signature on the new will and there again met the Pines who acted as witnesses.

Ron was not present at the signing of either document.

4. When questioned at trial whether he had carbon copied anyone else on the
deed or the will, Unke replied that he had not because, “I wasn’t asked to.”

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[¶14.] In 2002, Mary once again contacted Unke and requested that he draft

another deed, this time to convey her home in Hill City to herself, Ron and his son

Ronnie in joint tenancy. Unke drew up the deed and on September 20, 2002, sent it

to her under cover of transmittal with instructions for proper execution. Again,

Mary contacted Holzwarth and asked him to come to her house to notarize her

signature on the deed. Mary signed the deed on September 27, 2002. On April 4,

2003, Mary signed a third deed transferring three lots in the City of Bridgewater to

Ron for “$500.00 and other good and valuable consideration.”

[¶15.] Mary’s physical and mental deterioration accelerated during the latter

part of 2003 into 2004 and in 2005, she was moved to a nursing home at the Beverly

Healthcare facility in Rapid City. Mary died on August 4, 2005. Under the

provisions of the September 26, 2000 will, Mary had nominated and appointed Ron

as personal representative for the estate. On September 19, 2005, Ron filed a

petition with the circuit court for formal probate of the will and acceptance of

appointment. The February 20-22 and 27, 2007 trial followed Judy’s and Tom’s

objection to the will and appointment of Ron.

[¶16.] Judy and Tom argued at trial that due to her failing mental and

physical condition following the death of Tom, Sr. in 1998, Mary was incompetent

and lacked testamentary capacity at the time she signed the September 26, 2000

will and that the will was the product of Ron’s undue influence upon her such that

it was not valid. Moreover, they asserted that Ron took advantage of his

confidential relationship with Mary and her failing condition in order to fracture

their relationship with her so that he could gain title to the McCook County farm,

the Hill City home and the Bridgewater lots. However, when Judy was asked at
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trial what actions Ron took to exert undue influence on her mother to their

detriment, Judy responded that she had no specifics. She was also asked if she had

seen any documents where Ron had indicated to his mother that he was “entitled to

everything.” Again, Judy replied that she had seen none. Tom likewise could point

to no statements or actions by Ron that influenced Mary to convey the property and

execute a new will. In addition, Deputy Smith testified that while Ron was the only

family that frequently visited Mary, he could recount no instance of him influencing

Mary to do anything. Still, Judy stated the supposed actions of Ron were “the only

explanation I can find in my mind why she [Mary] stopped talking to me and Tom

[in the September 2000 time frame] and did all these severe changes in her life.”

Specifically, with respect to Tom’s relationship with Mary, Judy went on to state,

she believed that Ron “could have done something” to repair the relationship, but

did not. However, when Tom was asked whether he had asked Ron to intercede on

his behalf, Tom stated, “I don’t believe I asked him . . . . I don’t specifically

remember asking him to attempt to repair my relationship with my mom. I can’t

recall that.” Though when asked for a reason why his mother disowned him on

September 9, 2000, Tom replied, “I believe that Ron influenced her. I think, he –

that’s what I believe in my heart.” Tom went on to testify, “I believe Ron wanted the

farmland in the worst way, and he would do whatever it took to acquire that

farmland and any other property that mom owned free and clear without paying a

dime for it.”

[¶17.] The circuit court found that Mary was legally competent when she

signed the will and deeds and that the documents were not the result of undue

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influence. The court also found, however, that Mary became incompetent on or

about July 1, 2003. Having initially ordered the appointment of Ron as personal

representative on December 16, 2005, the circuit court, following the trial, ordered

that Ron be removed from that capacity in favor of a court-appointed special

administrator tasked with determining whether any gifts or other transactions

made by Mary after July 1, 2003 should be invalidated.

[¶18.] Judy and Tom raise two issues on appeal:

1. Whether the circuit court erred in refusing to invalidate
the will and real property deeds based on Mary’s
alleged incompetence and lack of testamentary
capacity or on Ron’s alleged undue influence. 5

2. Whether Ron breached a fiduciary duty.

STANDARD OF REVIEW

We review a trial court’s findings as to testamentary capacity
under the clearly erroneous standard. Likewise, the issue
of whether undue influence exists is a question of fact for
the trial court to determine. . . . We will not set aside
a trial court’s findings of fact unless they are clearly
erroneous. A trial court’s finding is clearly erroneous if,
after reviewing the entire evidence, we are left with the
definite and firm conviction that a mistake has been made[.]
All conflicts in the evidence must be resolved in favor of
the trial court’s determinations. The credibility of the
witnesses, the weight to be accorded their testimony,
and the weight of the evidence must be determined by
the [circuit] court and we give due regard to the [circuit]
court’s opportunity to observe the witnesses and the
evidence. We review any documentary or deposition
evidence under a de novo standard of review.

5. While Judy and Tom couch this issue in terms of error with respect only to
the deeds and an assertion of undue influence, their argument on appeal
clearly encompasses an objection to the will and assertions that Mary was
incompetent and lacked testamentary capacity at the time these documents
were executed.

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In re Estate of Dokken, 2000 SD 9, ¶10, 604 NW2d 487, 490-91 (internal citations

and quotation marks omitted). “On review the successful party is entitled to the

benefit of his version of the evidence and of all favorable inferences fairly deducible

therefrom.” Matter of Podgursky’s Estate, 271 NW2d 52, 56 (SD 1978) (quoting In

re Estate of Hobelsberger, 85 SD 282, 181 NW2d 455, 458 (1970) (citing In re

Blake’s Estate, 81 SD 391, 136 NW2d 242 (1965))).

ANALYSIS AND DECISION

[¶19.] 1. Whether the circuit court erred in refusing to invalidate
the will and real property deeds based on Mary’s alleged
incompetence and lack of testamentary capacity or
on Ron’s alleged undue influence.

Competency

[¶20.] Our statute, setting out the basic requirements to make a will

mandates that the testator be of sound mind. SDCL 29A-2-501. Testamentary

capacity and competence evincing the soundness of mind required to make a will

are demonstrated when without prompting, one is able to comprehend the nature

and extent of his property, the persons who are the natural objects of his bounty

and the disposition that he desires to make of said property. Matter of Estate of

Linnell, 388 NW2d 881, 883 (SD 1986) (quoting Podgursky, 271 NW2d at 55).

Testamentary capacity and competence in this regard does not require that one

have the intellectual vigor of youth or perfect health. Id. (quoting Petterson v.

Imbsen, 46 SD 540, 194 NW 842, 844 (1923)). Mere physical weakness is not

determinative of soundness of mind. Id. (citing In re Estate of Anders, 88 SD 631,

226 NW2d 170, 173 (1975)). Moreover, it is not necessary that a person desiring to

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make a will have the capacity to make contracts and do business. Id. (quoting

Petterson, 46 SD 540, 194 NW at 844). One may lack competency, such that in the

view of medical science he is not of sound mind and memory, yet still retain the

requisite competency to execute a will. Dokken, 2000 SD 9, ¶14, 604 NW2d at 491

¶14 (citing Podgursky, 271 NW2d at 57 (citing Keely v. Moore, 196 US 38, 25 SCt

169, 49 LE2d 376 (1904))). “Testamentary capacity is not determined by any single

moment in time, but must be considered as to the condition of the testator’s mind a

reasonable length of time before and after the will is executed.” Id. ¶14 (quoting

Matter of Estate of Long, 1998 SD 15, ¶23, 575 NW2d 254, 258 (citing In re

Guardianship and Conservatorship of Lanning, 1997 SD 81, ¶11, 565 NW2d 794,

796 (citing In re Estate of Nelson, 330 NW2d 151, 155 (SD 1983)))).

[¶21.] In this case, during 2004 there was substantial testimonial and

documentary evidence that Mary suffered a steady decline in her mental and

physical faculties. Deputy Smith had been dispatched repeatedly to Hill City to

check on Mary after her reports that people were in her basement or drilling

beneath her basement. At other times, she had reported that a man and woman

were coming into her house through a vent behind her television set. On at least

one occasion Mary reported that someone was having a baby under her deck. On

still another occasion, when Ron was staying with his mother, Mary called the

sheriff’s department to report that he was in the basement doing drugs. However,

when Deputy Smith arrived at Mary’s, he found no sign of any drugs and that Ron

was merely in the basement sleeping. Other than a call on April 17, 2003, in which

Mary with no apparent justification alleged that a long-time friend and home nurse

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had stolen what Mary believed to have been a $350,000.00 sweepstakes ticket, all of

Mary’s seemingly delusional reports to law enforcement occurred in 2004. In the

opinion of Deputy Smith, by late 2004, Mary was “getting to the point” where she

should not have been living alone.

[¶22.] The Pines also testified to Mary’s deteriorating mental faculties.

Gloria indicated that while the pace of the deterioration was gradual following the

death of Tom, Sr., it progressed more significantly following a fire in the Black Hills

in August 2002 that forced Mary to evacuate her home. Joel testified that he had

also come to Mary’s in response to her reports of strange people in her basement.

However, he indicated that these episodes did not begin until 2004. In general, Joel

stated that in the year prior to Mary’s death in August 2005, her mental condition

had become terrible.

[¶23.] An assistant vice president at First Western Bank, Bruce Pelton

(Pelton), described Mary as being of questionable lucidity. He also stated that she

would call the bank to ask employees to deliver things like groceries. However, he

did not start working at the bank until February 2004. Based on conversations

with bank employees that predated his tenure, he believed that Mary had been

behaving in this way for “several months” prior to the date that he started work at

First Western.

[¶24.] While these accounts support the contention of Judy and Tom that

their mother was mentally incompetent, other evidence was supportive of the

circuit court’s determination that Mary was legally competent at the time she

signed the deeds and her last will. For this analysis we treat the deeds as

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testamentary in nature since the record indicates that Mary executed them with a

mind toward disposition of the real property following her death.

[¶25.] On September 14, 2000, just prior to the September 19, 2000 farm

deed and the September 26, 2000 will, Unke conducted a telephone call with Mary

for the purpose of determining to his satisfaction that she was competent to change

title to the farm ground in a way that would determine disposition upon death and

to sign a new will. Unke recorded the call and a transcript was made. 6 The circuit

court made a specific finding in regard to the recording of this conversation:

. . . This taped phone conversation demonstrates that
[Mary] was oriented to time and place when the conversation
occurred. She spoke in a clear voice which was completely
comprehensible. It was not the voice of an old, frail
or decrepit woman.

(Emphasis added).

[¶26.] We conclude that the circuit court’s assessment of Mary during the

conversation is accurate. Unke asked Mary about the farm ground, other real

estate and bank accounts. Mary stated that the farm ground consisted of four

quarters. She went on to describe how the quarters were located in relation to each

other and mentioned the names of townships in which the quarters were situated.

She also identified the Hill City and Bridgewater City properties including

addresses and legal descriptions. When asked about securities and bank accounts,

Mary stated that she owned no stocks or bonds, but that she had certificates of

deposit at First National Bank in Freeman, South Dakota and that she received her

6. In addition to the transcript, the tape from which it was made was included
in the appellate record for our review.

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social security at First Western Bank in Hill City. When asked about her children,

Mary identified all four by name and gave birthdates and some details of birth. She

also identified a son Michael, who died in childbirth, and stated the date and

specifics about his death.

[¶27.] During his discussion with Mary about the disposition of her estate

and how creating a joint tenancy for the farm ground would cause that property to

pass directly to Ron upon her death, the following exchange transpired:

Unke: OK. Uh . . . do you understand that upon your
death Ron becomes owner of the property?

Mary: Alright. That’s fine.

Unke: Is that what you want?

Mary: Yes.

Unke: OK . . . and I know your will treats the three children
equally, why do you want to give Ron the farm?

Mary: Because he is the only one that wants to farm and
all they want is the money out of it . . . the other
ones . . . that’s totally.

Unke: OK. You understand on your death that Ron will
be the sole owner of that property?

Mary: That’s correct.

Unke: And is that the way you want it?

Mary: That’s the way I have to have it and that’s the way
I want it. Yes sir.

[¶28.] Besides Mary’s own references to her property, persons interested

therein and the disposition thereof, as recorded by Unke, the testimony of others at

trial further substantiated Mary’s soundness of mind with respect to her property

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throughout the time relevant to the new will and the deeds. Gloria Pine testified

that during the time frame that the new will and farm deed were executed, Mary

talked regularly about the McCook County farm ground and the Bridgewater City

property. She further indicated that Mary knew how much farm ground she owned,

and that she was sure that Mary was cognizant of all of her children. Judy also

testified that in that time frame Mary was oriented to time and place knew of the

property that she owned.

[¶29.] Holzwarth testified that he handled Mary’s business at First Western

Bank until turning it over to Pelton in February 2004. Holzwarth indicated that

during the period in which he handled her accounts, Mary would call “semi-

frequently” to make sure that she was getting competitive rates on her certificates

of deposit. He also stated that “she was pretty diligent” and that “she had a pretty

good handle or [knew] pretty close to the exact balances in the account[s] at the

bank and how many CDs she had.” Moreover, he indicated that she knew where

her farm ground was, who was farming it and that she was cognizant of her farm

income.

[¶30.] While there was evidentiary support to conclude that Mary’s mental

faculties had declined significantly by 2004, Joel Pine’s testimony indicated that

Mary “kept a pretty good handle on her property” through even mid 2004. In

addition to real property, Mary also owned significant items of personal property, in

particular an F-150 Ford pickup and a motor home. Joel stated that the F-150 was

her “pride and joy” and that she always made sure that it was garaged. Gloria Pine

testified that Mary would mention when she had bought batteries for her motor

home and that she wanted to keep it in good shape. Tom testified that when he was
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on speaking terms with his mother he had suggested that she sell the motor home

since Tom, Sr. was no longer living and that she would no longer be using it. Tom

stated that in response,

She became instantly agitated. That was something that
she had worked very hard on to acquire and that was
something she would own to the day she died. Nothing
that she ever owned was going to be sold or done anything
with. She was going to own it.

[¶31.] That Mary was competent and of sound mind during the time at issue

could also be reasonably inferred from documentary and testimonial evidence

pertaining to the signing ceremonies for the various documents. Her cognizance of

the requirements for executing a will is evident from rough notes in her own

handwriting entered on August 21, 2000 in a notebook that was received into the

record as Exhibit 54. The following entry was made:

(my Will) start to my final will. I have to have 2 people
sign (my) Witnessing of my person to help me and a notary
public person to be there when I sign the papers for my
Helping Hand namely Ronald Henry Pringle. All is
completed and I am so glad to have (Some) of the finalizing
of the business.

(Parentheses original, emphasis added).

[¶32.] On the same day she also made the following entry: “The (Notary

Public) whom will witness my Signatures will be (Neil Holzwarth) at the First

Western Bank – Hill City So. Dak and 2 (fine) witnesses, our Joel and Gloria Pine.”

(Parentheses original). The following entry was the last made on August 21, 2000:

I need a Notary Public person Neil Holzwarth from HC
Bnk and 2 witnesses to verify My Signature and date.
Legal Info on Business as Needed. I read (all) My Info.
and let the chips fall where they may. It seems =

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(First emphasis original, parenthesis original, second emphasis added).

[¶33.] Holzwarth testified that when Mary wanted him to notarize a

document, she would call and make an appointment with him to come to her house.

The Pines also testified that Mary made arrangements with them in advance to

witness the POA and her last will. Both Holzwarth and the Pines indicated that

Mary would have the documents ready for signing and pens and pencils available

when they arrived for a signing ceremony. Holzwarth stated that Mary never

wanted to take up any more of his time than necessary. Holzwarth testified that

Mary would announce that he was there to notarize a deed or that he and the Pines,

respectively, were there to notarize and witness her last will and testament. 7

Moreover, he had no question that she knew what the will and the deeds were for.

[¶34.] Holzwarth indicated that at the times he notarized documents for

Mary, she was oriented to time and place and was cognizant of the seasons. He also

indicated that there was nothing in her behavior or speech that would have caused

him to question her competency. Likewise, Joel Pine indicated that he and Gloria

were not aware of any problems with Mary in or around the time of the signing

ceremonies. Holzwarth had no question that Mary was competent to sign the

documents stating:

In my capacity as vice-president/loan officer and branch
officer, I have a fair amount of contact with people. All
of her thought processes and actions appeared to be in
a capacity that I had no reason to doubt her capacity of
signing [these documents].

7. Holzwarth testified that Mary used the precise words “last will and
testament” when announcing that document.

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(Emphasis added).

[¶35.] Finally, we contrast the facts of this case with those Judy and Tom cite

in support of their position – Dokken and Podgursky. In the prior cases, the

testators had been deemed incompetent for Department of Veteran’s Affairs (VA)

purposes, meaning they lacked the ability to handle their own affairs, including

their VA disbursements. Dokken, 2000 SD 9, ¶21, 604 NW2d at 493; Podgursky,

271 NW2d at 55. The testators had been institutionalized or had lived in a

supervised care environment for years. Dokken, 2000 SD 9, ¶4, 604 NW2d at 489;

Podgursky, 271 NW2d at 53-54. Despite these facts, this Court affirmed the

decisions below that the testators possessed testamentary capacity. Dokken, 2000

SD 9, ¶25, 604 NW2d at 494; Podgursky, 271 NW2d at 58.

[¶36.] Although under the POA, Ron had the authority to administer Mary’s

affairs, evidence at trial suggested that Mary for the most part handled her own

affairs into 2004. Holzwarth testified that Mary regularly checked on rates being

paid on certificates of deposit, made her own arrangements to roll-over maturing

certificates into new ones and checked to see if promotional rates were available at

those times. Pelton testified that she had check writing ability on her account

during 2004. In addition, Mary lived in her own home until 2005.

[¶37.] While there is no way to know with certainty when Mary became

incompetent, the record indicates that at some point she in fact did. However, our

review of the record reveals that there is evidentiary support for finding that Mary

was of sound mind for purposes of testamentary capacity throughout the time

during which she signed her last will and the deeds. Therefore, we conclude that

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the circuit court was not clearly erroneous in finding that Mary was legally

competent at the time she signed her last will and the deeds and did not become

incompetent until on or about July 1, 2003.

Undue Influence

a. The proponent’s burden of going forward with the evidence when a
confidential relationship exists.

[¶38.] Supported by the fact that Ron was Mary’s attorney-in-fact by virtue of

the August 23, 2000 POA, the circuit court found that Ron had a confidential

relationship with his mother. The court thereby concluded that a presumption

existed that Ron exerted undue influence on Mary when she signed her last will and

the deeds, which resulted in her real property passing to him to the exclusion of

Judy and Tom. The court found that Ron overcame the presumption and that Judy

and Tom thereafter failed to prove Ron exerted undue influence.

[¶39.] Judy and Tom argue that because Ron had a confidential relationship

with Mary, the ultimate burden of proof in regard to undue influence was for Ron to

show that it did not occur. Judy and Tom contend that the circuit court erred by

shifting the burden to them to show that undue influence occurred after finding that

Ron met the presumption. In the alternative, they argue that they met the burden.

We disagree in both respects.

A presumption of undue influence arises “when there is
a confidential relationship between the testator and a
beneficiary who actively participates in preparation and
execution of the will and unduly profits therefrom.” 8
When this presumption arises, the burden shifts to the

8. While there is no evidence that Ron participated in the preparation and
execution of the document, we decide this case on other grounds.

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beneficiary to show he took no unfair advantage of the
decedent. However, the ultimate burden remains on
the contestant to prove the elements of undue
influence by a preponderance of the evidence.

Dokken, 2000 SD 9, ¶28, 604 NW2d at 495 (internal citations omitted) (emphasis

added).

[¶40.] We refer to the presumption that arises in a beneficiary holding a

confidential relationship with the testator as the burden of going forward with the

evidence. Dokken, 2000 SD 9, ¶28, 604 NW2d at 495-96; Matter of Estate of Unke,

1998 SD 94, ¶13, 583 NW2d 145, 148 (citing In re Estate of Metz, 78 SD 212, 100

NW2d 393, 398 (1960)); Podgursky, 271 NW2d at 58 (quoting Anders, 88 SD 631,

226 NW2d at 174); Davies v. Toms, 75 SD 273, 63 NW2d 406, 410 (1954) (observing

that “[w]hile . . . the ‘burden of proof’ never shifts from the one who undertakes to set

aside a deed on the ground of undue influence,” there is a burden known as “the

‘burden of going forward with the evidence’” “that does transfer over to the other

side when evidence offered shows a relationship of trust and confidence”) (citations

omitted) (emphasis added); McKiver v. Theo. Hamm Brewing Co., 67 SD 613, 297

NW 445, 447 (1941). In Podgursky, we reiterated that it is a mistake to conclude

that this burden equates with the ultimate burden of proof on the issue of undue

influence. 271 NW2d at 59 (quoting Anders, 88 SD 631, 226 NW2d at 174). Rather,

the presumption known as “the burden of going forward with the evidence” means

only “the burden of going forward with a reasonable explanation of the (claimed)

unnatural character of the [document].” Id. (quoting Anders, 88 SD 631, 226 NW2d

at 174) (parenthesis original). In McKiver, this Court addressed the distinction

between burden of proof and presumption:

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[A] presumption . . . disappears when evidence is introduced
from which facts may be found. As stated by this [C]ourt
in the case of Peters v. Lohr, 24 SD 605, 124 NW 853, 855 (1910):

“A presumption is not evidence of anything, and
only relates to a rule of law as to which party shall
first go forward and produce evidence sustaining
a matter in issue. A presumption will serve as and
in the place of evidence in favor of one party or the
other until prima facie evidence has been adduced
by the opposite party; but the presumption should
never be placed in the scale to be weighed as evidence.
The presumption, when the opposite party has
produced prima facie evidence, has spent its force
and served its purpose, and the party then, in whose
favor the presumption operated, must meet his
opponent’s prima facie evidence with evidence, and
not presumptions.”

This burden of going forward with the evidence differs from
the burden of proof. A presumption casts upon the person
against whom it is applied the duty to go forward with
the evidence on the point to which the presumption relates.
The burden of proof, meaning the duty of establishing the
truth of a claim by such quantum of proof as the law
requires, rests upon the party having the affirmative
of an issue. The latter never shifts during the course
of a trial, while the burden of going forward with the
evidence may shift.

67 SD 613, 297 NW at 447.

[¶41.] To rebut the presumption that he was using his confidential

relationship with Mary to further his own interest to the detriment of Judy and

Tom, Ron contends that the numerous phone calls with and visits to his mother

were not designed to exert undue influence on her, but rather were expressions of

love and caring for his mother. It is undisputed that after September 2000, neither

Judy nor Tom had or attempted any communication with their mother for over four

years. Although they offered no evidence to the circuit court that Ron took any

action to keep them from contacting their mother, they now claim that some vague
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on-going effort by Ron to do just that was responsible for the fact that neither of

them had any contact with her in person, by phone or by letter until 2004. This

claim rings hollow in view of the fact that Ron, who lived in Bridgewater over 300

miles from Hill City, lived further away from his mother than either Judy (Pierre)

or Tom (Chamberlain) and had no way to intercept phone calls or the mails.

[¶42.] There is also evidence in the record that it was very important to Mary

that the McCook County farm ground remain in the Pringle family rather than

being sold off for money. Again from the record, it is apparent that Mary was

abundantly aware of the fact that Ron was farming the ground and that he would

not sell it because he wanted to continue farming. Likewise, it is apparent that

Mary intended for the Hill City home to serve as a memorial to Tom, Sr. and

eventually her. A head stone was placed on the property. It is reasonable to infer

that Mary believed that Ron would also retain that property so as to honor her

wishes.

[¶43.] Moreover, Ron rebuts the presumption of undue influence by asserting

that in Unke, Mary had independent advice when contemplating her last will and

the deeds. See Black v. Gardner, 320 NW2d 153, 159 (SD 1982) (reiterating that

the presumption of undue influence can be rebutted “by showing that the one

allegedly overpersuaded had independent advice that was neither incompetent nor

perfunctory”) (citing Davies, 75 SD 273, 63 NW2d 406). Judy and Tom dismiss this

assertion citing that Ron had retained Unke to represent him in 1998 during his

divorce; in 1999 during a dispute with Chuck over the placement of Tom, Sr.’s

remains in the Bridgewater Cemetery; in 2002 when he sought a protection order

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against his ex-wife; and in 2005 for property issues. Notwithstanding the fact that

the 2005 representation occurred after all of the documents in question were

drafted and executed, this argument fails because these were entirely separate

representations. What is determinative is the testimony of Unke in regard to his

representation of Mary. Unke indicated that in regard to his consultation with his

long-time client about her last will and the deeds, Mary is the one that he

considered to be his client and he consequently considered that his ethical duties

ran to her. Thus, we conclude that there was evidentiary support for the circuit

court’s finding that Ron rebutted the presumption that he used his confidential

relationship with Mary to exert undue influence upon her. Therefore, we conclude

that there is no basis upon which to determine that this finding was clearly

erroneous.

b. The contestants’ burden of proving the elements of undue influence.

[¶44.] Having established that Ron rebutted the presumption of undue

influence, it then remains for Judy and Tom to prove that it occurred.

It is well settled that it is [the burden of the contestant of
a testamentary document] to prove each of the four elements of undue
influence by the greater weight of the evidence. These elements
include:

(1) decedent’s susceptibility to undue influence;
(2) opportunity to exert such influence and effect the
wrongful purpose;
(3) a disposition to do so for an improper purpose; and
(4) a result clearly showing the effects of undue influence.

In re Estate of Schnell, 2004 SD 80, ¶21, 683 NW2d 415, 421 (citing In re Estate of

Holan, 2001 SD 6, ¶16, 621 NW2d 588, 591-92). “For influence to be undue it must

be of such a character as to destroy the free agency of the testat[or] and substitute

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the will of another for that of the testat[or].” Id. (alteration original) (quoting

Matter of Estate of Elliott, 537 NW2d 660, 662 (SD 1995)).

[¶45.] The circuit court found that Mary was “not at all susceptible to undue

influence.” Mary was known to have been a frequent player of sweepstakes. An

occasion occurred in which Mary contacted the Pennington County Sheriff’s

Department and First Western Bank to inquire about a sweepstakes-related

solicitation that she had received. Judy and Tom argue that the fact that Mary

frequently played the sweepstakes and that she had apparently been targeted by

hucksters is evidence of her susceptibility to undue influence.

[¶46.] The sweepstakes-related deception that Mary reported to the Sheriff’s

Department was perpetrated by a person that identified himself as “Sir Michael

Kensington.” “Sir Kensington” attempted to scam Mary out of $6,500.00 by telling

her that if she would send him a cashier’s check in said amount, she would receive

her sweepstakes winnings totaling $392,460.00. Instead, Mary called First Western

and spoke with the branch president about the incident. The bank president

advised her against paying any money and told her to report the incident to the

sheriff’s department. Mary did so. Thereafter, “Sir Kensington” again contacted

Mary, at which time she told him that any further inquires of her should be directed

to her banker. “Sir Kensington” then crudely swore at Mary and hung up the phone

ending the matter. Contrary to concluding that this incident was indicative of

Mary’s susceptibility to undue influence, the circuit court made an oral finding that

the incident evinced her ability to recognize someone who was attempting to take

advantage of her.

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[¶47.] Joel Pine testified that he felt Mary was not able to properly care for

herself for sometime before she was actually removed from the home in 2005. He

stated that he tried to talk to her about getting some help, but that she was

“bullheaded” and “stern” about staying in her house and that she rejected his

suggestion. He went on to testify that her attitude was not limited to matters

concerning her living arrangements, but rather that it applied to “everything.” He

indicated that she was “strong-willed” and “very determined.” He also was of the

impression that her children would “listen to her when she spoke.”

[¶48.] Gloria Pine indicated that Mary was “closed-mouthed” about her

finances and that Gloria also considered Mary to be “strong-willed.” Gloria too

thought the term bullheaded fairly described Mary and that her children would

probably do whatever she wanted them to do.

[¶49.] Interestingly, the contestants in this case expressed similar opinions

during their testimony. Tom, characterized her as capable of being “a very

controlling person.” Judy even went so far as to indicate that Mary was “not too

susceptible to persuasion.”

[¶50.] We conclude that the forgoing accounts constitute evidentiary support

for the circuit court’s finding that Mary was “not at all susceptible to undue

influence.” Therefore the circuit court’s finding is not clearly erroneous. Since Judy

and Tom are unable to prove the first element of undue influence, they are unable

to meet their burden of proof and we need not address the remaining elements

requisite to that showing.

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[¶51.] 2. Whether Ron breached a fiduciary duty.

[¶52.] Since we concluded by our analysis of Issue 1 there were explanations

apart from any action that Ron took within the context of his confidential

relationship that could account for why Mary executed a new will and the deeds;

that she had independent advice in this regard; and that in any case no undue

influence could be shown, we hereby conclude that Ron did not breach a fiduciary

duty prior to July 1, 2003 – the date which the circuit court found Mary to be legally

incompetent. However, because the circuit court appointed a special administrator

to review Mary’s post-July 1, 2003 gifts and transactions for validity, a question

remains as to whether Ron breached a fiduciary duty from that point forward.

Since at the time of this appeal no report had yet been submitted by the special

administrator we decline to consider this issue today. See Boever v. South Dakota

Bd. of Accountancy, 526 NW2d 747, 750 (SD 1995) (opining that appellate review of

an issue that has yet to become ripe amounts to issuing an advisory opinion and

that even though the Court may have jurisdiction to issue such an opinion, it should

refrain from doing so “if the issue is so premature that the [C]ourt would have to

speculate as to the presence of a real injury”) (citation omitted).

[¶53.] Affirmed.

[¶54.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices,

concur.

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