Considered on Briefs May 26, 2015
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT MARSHALL COUNTY, SOUTH DAKOTA. THE HONORABLE RICHARD A. SOMMERS, Judge.
ROY A. WISE, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for respondent and appellant Marcelina M. Deutsch.
GORDON P. NIELSEN, DAVID A. GEYER of Delaney, Nielsen & Sannes, P.C., Sisseton, South Dakota, Attorneys for petitioners and appellees Hillary Schuster aka Larry Schuster and Ronald Jaspers.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.
[¶1] Delbert Deutsch's nephews petitioned for formal probate of a copy of Deutsch's 2001 will when no original was found despite a careful and exhaustive search by Deutsch's widow Marcelina and her son. The copy was admitted to probate after the court was reasonably satisfied that Deutsch had not revoked the will. Marcelina appeals. We affirm.
[¶2] Delbert Deutsch died on August 23, 2012. Marcelina and her son found a copy of a 2001 will on top of Delbert's desk among other papers he considered important. The circuit court found that Marcelina and her son made a careful and exhaustive search but could not find an original will. Marcelina filed an application for informal intestate probate and appointment of personal representative on April 3, 2013. She filed a copy of the 2001 will with the application. On August 28, 2013, Hillary Schuster (" Larry" ) and Ronald Jaspers (" Ronald" ), Delbert's nephews, filed a petition for formal probate of the copy of the will and for determination of heirs. The court held a trial on April 15, 2014 to determine whether to admit the copy of the 2001 will to probate.
[¶3] The attorney who prepared the will died in 2008, and the attorney's employees testified that they did not know whether the original will was given to Delbert or retained by the attorney. The attorney's employees explained that the attorney normally would send originals with his clients, but he did keep some originals.
[¶4] Larry and Ronald each live within a few miles of Delbert and Marcelina's farm, and both would receive real estate under the 2001 will. Delbert gifted Larry six acres of land in 1993. Larry's home is located on the six acres, and he has lived there since approximately 1993. Both nephews testified that they had a close relationship with Delbert that began when they were young. They helped Delbert with farming and Delbert helped them in return. Delbert loaned $5,000, interest-free, to Ronald and gave him other small gifts of money over the years. In 2012, Delbert told Larry that the land surrounding the six acres would be Larry's one day. The land surrounding Larry's home was owned by Delbert and bequeathed to Larry under the 2001 will, along with additional real estate.
[¶5] Marcelina testified that Delbert did not discuss estate planning with her and she did not know about the existence of the 2001 will. Under the 2001 will, Mario, Marcelina's son from a prior ...