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Estate of Hubert

Supreme Court of South Dakota

October 26, 2016

ESTATE OF BONNIE JEAN HUBERT, also known as Bonnie Jean Pease, Deceased.

          CONSIDERED ON BRIEFS ON OCTOBER 3, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge

          WILLIAM D. GERDES JERALD M. MCNEARY, JR. of William D. Gerdes, P.C. Aberdeen, South Dakota Attorneys for appellants Lynn and Lisa Schock.

          JACK H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for appellee Donna Mae Sedivy.

          ZINTER, Justice

         [¶1.] Bonnie Jean Pease[1] died leaving a holographic will. The circuit court ruled that the will devised all residual property to Douglas Hubert and nothing to Lisa and Lynn Schock. The court ruled that Pease only intended Schocks to be personal representatives who were to execute the will. Schocks appeal. We reverse.

         Facts and Procedural History

         [¶2.] Pease executed a holographic will while in the penitentiary approximately seven months before her death on August 4, 2013. The will disinherited Pease's mother Donna Sedivy, her sister Beverly Shimmin, and her brother Brian Hubert, but not her brother Douglas Hubert. The will explained the disinheritances as well as her other wishes. With respect to her wishes, Pease indicated that Douglas had "some right to acquire some of [her] wealth, " that she owed her friends Lisa and Lynn Schock "for their amazing precious support, " that she needed to provide care for her bird "Cocky, " and that she wanted to provide funding for a lawsuit against the State and the South Dakota Women's Prison. Following this explanatory language, Pease wrote gifting language that provided:

Hence, I give all my belongings to Lisa and Lynn Schock contingent on them giving a share to my brother Douglas Dean Hubert and for Cocky's new keeper mom search, and making some arrangements for litigation start monies to correct injustices at SDWP in Pierre.

         The foregoing language was followed by a break and a new paragraph concerning "executors." It provided:

Specifically I name Lisa & Lynn Schock the Executors of my estate. I have already transferred many things to them prior to my death. This is for what remains and I [sic] Dated this 10th day of January 2013.

         [¶3.] The circuit court admitted the will to probate and held an evidentiary hearing to determine whether the will could be executed and if so, how to execute it. Following the hearing, the court interpreted the will to mean that Pease did not intend to devise anything to Schocks. The court ruled that Pease only intended to appoint them as personal representatives who were to set aside funds to search for a new home for Cocky and fund litigation against the State; and after that, Schocks were to distribute the entire residual estate to Douglas.[2]

         [¶4.] Schocks appeal. They argue that the gifting language of the ...


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