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Court Rules on Whether to Revoke Will

The Supreme Court of South Dakota recently ruled on whether an estate should be probated intestate despite the existence of a copy of a will. This case is interesting because unlike most cases of lost wills, in this instance the spouse of the deceased wanted the copy revoked and the estate probated as if a will never existed, and relatives wanted the copy of will to stand on its own.

Facts of the Case

In the case In re Estate of Deutsch, Delbert Deutsch died on August 23, 2012. After an exhaustive search, his wife Marcelina found a copy of his 2001 will but could not locate the original. Despite finding the copy, Mrs. Deutsch petitioned the probate court to rule that the estate was intestate and apply the state laws regarding inheritance of an intestate estate.

Delbert Deutsch’s nephews, Hillary Shuster and Ronald Jaspers, filed a petition to formally probate the estate using the copy of the will that was found as well as for a determination of heirs. In the copied will, both nephews were to receive small parcels of real estate from their uncle. All three men farmed and helped each other since the nephews were young. The 2001 will granted them the farmland that was owned by Delbert around their homes.

Marcelina claimed that she did not know that any will existed, and under the 2001 will her son from another marriage would only receive Mrs. Deutsch’s share of the estate if she predeceased him. In addition, some of the real estate left to her in the will was sold by Delbert in 2008.

At trial, the estate planning attorney was unavailable because he passed away in 2008, but his employees testified that they did not know if the lawyer gave his client the original will or kept it. A jury found that Delbert did not intend to revoke his will and that the copy of the will should be accepted into probate. Mrs. Deutsch appealed the decision up to the state Supreme Court.

Ruling of the Court

The South Dakota Supreme Court agreed with the ruling of the trial court that the copy of the will should be admitted into probate. Under state law, SDCL 29A-3-402 states that when a will is lost the presumption is that the will was revoked; however, this presumption can be overcome if at least one credible witness can state that the copy is a true copy of the original and that the original will was not meant to be revoked.

In this case, the jury found that Delbert’s acts and declarations prior to his death overcame the presumption that this will was supposed to be revoked. He contemplated the gifts of real estate for many years, and his relationship with his nephews remained the same up until his death. Mr. Deutsch also left the will in a location where he knew it would be found, on top of his desk with other important papers. Therefore, the estate was admitted into probate with the copied will.

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