In the Matter of the Estate of EDWARD F. BICKEL, Deceased
on Briefs January 11, 2016
modified April 5, 2016.
[Copyrighted Material Omitted]
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, CORSON
COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON,
A. PETERSON, ELIZABETH S. HERTZ of Davenport, Evans, Hurwitz
& Smith, LLP, Sioux Falls, South Dakota, Attorneys for
appellant, Gail Bickel.
HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck
& Hieb, LLP, Aberdeen, South Dakota, Attorneys for
appellee, Edward J. Bickel.
Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
KERN, Justices, concur.
[¶1] In this seven-year estate dispute,
testator's daughter appeals the circuit court's
decision denying her relief from an order under SDCL
15-6-60(b). The daughter also asserts the circuit court erred
when it considered extrinsic evidence to interpret the
testator's Last Will and Testament and subsequent
Codicil, approved the personal representative's proposed
distribution of testator's assets, reformed the Will and
Codicil, and awarded attorney's fees to testator's
grandson. We affirm.
[¶2] Edward F. Bickel was born in 1925, and
grew up on his family's farm and ranch until he left to
join the military. After his service, Edward F. returned to
the family farm and worked with his father and brother until
they split the farm. After the split, Edward F. began to
operate his own farm and ranch near Isabel, South Dakota. He
married Nadine and had two children, Edward P. and Gail.
Nadine and Edward F. divorced in 1972, and Edward F. never
remarried. Edward P. and Gail continued to live and work on
the ranch while growing up. As adults, neither Edward P. nor
Gail remained on the ranch or maintained an active role in
the day-to-day ranch operations.
[¶3] Edward P.'s son, Edward J. (Eddy),
was close to his grandfather, Edward F. Eddy described the
relationship to be akin to one between a father and son.
During high school and college, Eddy spent the summer months
helping Edward F. operate the ranch. After Eddy graduated
college in 2005, he returned to the ranch to work with his
grandfather full time. A few years later, Eddy and his wife
Megan wanted assurances from Edward F. that a long-term plan
would exist for Eddy's involvement in the ranch. And
Edward F. wanted the ranch to remain in the Bickel name.
Edward F. and Eddy had ongoing discussions about Eddy's
[¶4] In 2008, Edward F.'s health began
to deteriorate. He ranched less and less. At the time, Edward
F. did not have a written will. He contacted attorney Andrew
Aberle to assist in planning his estate. According to Aberle,
Edward F. wanted the ranch to remain in the Bickel name and
wanted Eddy to take over its operation. Between June 2008 and
November 2009, Edward F. had Aberle execute multiple estate
[¶5] In June 2008, Edward F. executed a Will
giving land to Edward P. unrestricted, land to Gail in trust,
and land to Eddy unrestricted. Edward F. provided Aberle the
legal descriptions for the land
by memory. The Will nominated Eddy as personal
representative. In July 2008, Edward F. gave Eddy and Megan a
quarter section of real property by warranty deed. In August
2008, Edward F. executed a Codicil to his June 2008 Will. The
handwritten Codicil directed that Eddy could rent one of
Edward F.'s tractors. It further provided that Edward
F.'s " investments and personal property" be
used to pay inheritance tax, with any remaining funds to be
split equally among his three granddaughters. In September
2008, Edward F. purchased a hay rake for $19,240. Eddy used
the rake on the farm.
[¶6] In November 2008, Edward F.'s
health continued to deteriorate. He was admitted to an
assisted living facility. That same month he executed a power
of attorney giving Eddy authority to deposit and withdraw
money from an account at Western Dakota Bank. In December
2008, Edward F. purchased a hay baler for use on the farm at
a cost of $21,000. Also in December 2008, Edward F. executed
a second Codicil to his 2008 Will. The Codicil provided that
all oil, gas, and mineral rights to his property be
distributed one-quarter to Edward P., one-quarter to Gail,
and the remaining one-half to his grandchildren. The Codicil
restricted the sale of land distributed to Edward P. Edward
F. amended the Codicil again, but never signed the amended
[¶7] In January 2009, Edward F. executed a
third Codicil to his 2008 Will. The Codicil amended the
distribution of the oil, gas, and mineral rights to be
distributed to his great-grandchildren after the death of
Edward P., Gail, and all Edward F.'s grandchildren. In
June 2009, Edward F. moved into a nursing home. He named Eddy
as primary beneficiary of a JP Morgan account and Gail's
daughter, Anne-Marie, as contingent beneficiary. Also in June
2009, Edward F. gave Eddy and Megan a quarter section of real
property by warranty deed.
[¶8] In September 2009, Eddy met with
Attorney Aberle without Edward F. Edward F. was in hospice
care. Eddy shared with Aberle notes from Edward F. related to
Edward F.'s estate. During the meeting, Aberle called
Edward F. to discuss Edward F.'s wishes. After the
meeting and phone calls, Aberle prepared two codicils to the
2008 Will. Eddy took the first Codicil to Edward F.
personally. The Codicil erroneously gave Eddy "
artifacts" instead of " hay" and listed Edward
P. as Edward F.'s " grandson." Aberle faxed a
second, corrected version to Edward F. Also in September
2009, Edward F. executed a bill of sale for household items
and personal property, a bill of sale for a rifle, a
handwritten letter gifting his " tame and wild hay"
to Eddy, a bill of sale giving Eddy his " tame and wild
hay," and an institutional health care power of attorney
appointing Eddy his health care attorney in fact.
[¶9] In September 2009, Aberle realized that
Edward F. signed the wrong codicil from September 14, 2009.
Aberle contacted Eddy to arrange for Edward F. to update the
estate documents. On September 22, 2009, Edward F. executed a
new Last Will and Testament and Codicil. It incorporated the
previous will and codicils. The new Will appointed Eddy to
serve as personal representative. The Will gave land to
Edward P. unrestricted, land to Gail in trust, land to Eddy
unrestricted, and $40,000 in trust to Anne-Marie for college
on the condition that she complete college in five years. The
Will provided that " the rest and remainder" of
Edward F.'s assets be distributed to Gail and Edward P.
equally, with Eddy having the right " to lease, buy or
sell" property held in trust for Gail " and other
property handled as personal representative." Under
the Will, Eddy had " the option to lease all land
devised to Gail Bickel" for $1,600 per 160 acres
($10/acre) per year. The Codicil Edward F. gave Eddy the
recently-purchased rake and baler. Rapid City attorney, John
Burke, and two members of his staff witnessed Edward F.'s
execution of the Will and Codicil. Burke asked Edward F.
questions about his children and his property. He also
observed Edward F. read portions of the Will.
[¶10] On October 7, 2009, Edward F. executed
another Codicil to the Will. The Codicil purported to "
delete and remove" land given to Gail in trust. In fact,
the Codicil deleted and removed land not owned by Edward F.
The Codicil amended the provision in the Will giving $40,000
in trust for Anne-Marie's college education to include,
in trust for Anne-Marie, a devise of the land deleted and
removed from Gail's trust (the land Edward F. does not
own). The Codicil provided Eddy with the right to "
lease, buy or sell" Edward F.'s " assets in
both the Gail Bickel Trust and the Annie Bickel Trust, . . .
including to himself, at any reasonable price as determined
in his sole discretion at either public or private sale
without the necessity of notice and without court approval or
authorization." The Codicil further amended the Will
provision that gave the remainder of Edward F.'s assets
to Edward P. and Gail equally to instead give " the rest
and remainder" of Edward F.'s assets to his "
[¶11] On November 4, 2009, Edward F. died in
hospice care. On November 13, 2009, Eddy petitioned the
circuit court to adjudicate testacy, determine heirs, and
appoint him personal representative. Eddy sought to have the
September Will and October Codicil admitted to formal
probate. He served notice of the petition and hearing,
scheduled for December 14, 2009, on the heirs of Edward
F.'s estate. On December 9, 2009, Edward P. and Gail
served an objection to Eddy's petition. They asserted
that Edward F. lacked testamentary capacity, and that the
Will and Codicil were the products of undue influence, fraud,
duress, and/or mistake. No other heir responded to or made an
appearance on Eddy's petition or Edward P. and Gail's
[¶12] The parties postponed the hearing on
Eddy's petition and stipulated to the appointment of a
personal representative other than Eddy. On January 27, 2010,
the court appointed Eric Bogue as personal representative of
the Estate of Edward F. Bickel. The court scheduled a trial
on Edward P. and Gail's objections for February 9-11,
2011. The other heirs did not receive notice of the trial
date. Edward P. and Gail moved for a continuance, which the
court granted. The other heirs did not receive notice of the
continued trial date. The court held a trial on Eddy's
petition and Edward P. and Gail's objections on June
[¶13] In August 2011, the court issued
findings of fact and conclusions of law overruling Edward P.
and Gail's objection that the Will and Codicil were the
products of Eddy's undue influence. The court held that
Edward F. did not lack testamentary capacity and entered an
order admitting Edward F.'s Will and Codicil to probate.
Gail appealed. This Court dismissed Gail's appeal because
she failed to serve notice of the appeal on all the heirs.
See, e.g., In re Estate of Geier, 2012 S.D.
2, ¶ 23, 809 N.W.2d 355, 361 (" Under SDCL 15-26A-4(3),
notice of appeal must be served on the heirs" and the
failure to do so " is jurisdictionally fatal[.]" ).
[¶14] On August 22, 2012, Gail moved the
circuit court for relief from the court's August 2011
order under SDCL 15-6-60(b). She alleged that the court's
order and judgment were void for Eddy's failure
to serve notice of the trial on all heirs as required under
SDCL 29A-1-401 and SDCL 29A-3-403. On October 1, 2012, the
circuit court issued findings of fact and conclusions of law
denying Gail relief from the August 2011 order.
[¶15] Over the next two years, the parties
litigated the probate of Edward F.'s estate and
distribution of his assets. Edward P. and Gail objected to
personal representative Bogue's September 2012 proposed
final distribution. They asserted that Bogue failed to
properly account for property rights and property passing
under the Will and Codicil. Specifically, they challenged the
proposed distribution of the S.E. 1/4 of S2-T18N-R23 (SE 1/4)
to Anne-Marie in trust because the Will devised that quarter
section to Gail in trust. Bogue had proposed distributing the
S.E. 1/4 to Anne-Marie in trust because he believed Edward F.
intended that quarter section be devised to Anne-Marie. He
relied on Edward F.'s Codicil, which devised the S.W. 1/4
of S2-T18N-R23 (SW 1/4) to Anne-Marie in trust. Edward F. did
not own the S.W. 1/4. In Bogue's view, therefore, Edward
F. intended the Codicil to read the S.E. 1/4, not S.W. 1/4.
[¶16] Edward P. and Gail also challenged the
proposed distribution of the N.E. 1/4 of S7-T19N-R24 to Eddy
because neither the Will nor Codicil made a provision for the
distribution of that property. Rather, the Will distributed
the N.E. 1/4 of S7-T20N-R24 to Eddy. Edward F. does not own
the N.E. 1/4 of S7-T20N-R24. In response, Eddy argued that,
Edward F. intended to give him the N.E. 1/4 of S7-T19N-R24
rather than the N.E. 1/4 of S7-T20N-R24.
[¶17] The circuit court held a hearing in
December 2012, and, in April 2013, issued findings of fact
and conclusions of law. It concluded that the Will and
Codicil were ambiguous. It ruled that Edward F. intended to
distribute the S.E. 1/4 to Anne-Marie in trust and the N.E.
1/4 of S7-T19N-R24 to Eddy. The court further concluded that
Edward F. intended that Eddy have the right to lease land
devised to Anne-Marie and Gail in trust. It ordered that Eddy
pay the Corson County FSA lease rate from the date of Edward
F.'s death until April 5 2013, and $1,600 per 160 acres
[¶18] Bogue submitted a proposed final
distribution consistent with the circuit court's order.
He also moved for reimbursement of expenses and for
compensation. Eddy, Edward P., and Gail filed objections.
From April 2013 to April 2015, the parties continued to
litigate the distribution of Edward F.'s assets. Relevant
to this appeal are Edward P. and Gail's objections to the
past and future rental rate and duration of the lease of
Gail's land held in trust, and Gail's request for
reimbursement for the loss in property value due to the
deterioration of certain assets bequeathed to her. After
multiple hearings, the court ruled that Eddy had the right to
lease the land held in trust for Gail at a rate of $10 per
acre on an annual basis. The court ordered that Eddy could
offset future rent payments with the amounts he overpaid from
the time of Edward F.'s death until the court's
January 5, 2015 order. The court denied Gail's request
for reimbursement for the deteriorated condition of certain
household items bequeathed to her and denied her request to
inspect the shop building to determine whether it contained
household items bequeathed to her.
[¶19] During the probate of Edward F.'s
estate, Eddy had moved the circuit court for reimbursement of
his necessary expenses including attorney's fees under
SDCL 29A-3-720. He asserted that between December 2009 and