IN THE MATTER OF THE GUARDIANSHIP AND CONVERSATORSHIP OF DEAN A. NELSON, a Protected Person.
OCTOBER 4, 2017
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT SULLY
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
MATTHEW P. BOCK JAMES A. POWER of Woods, Fuller, Shultz &
Smith Sioux Falls, South Dakota Attorneys for appellant
B. ANDERSON of May, Adam, Gerdes & Thompson, LLP Pierre,
South Dakota Attorneys for appellee Dean A. Nelson.
A. PARSONS, JR. of Johnson Janklow Abdallah Reiter &
Parsons LLP Sioux Falls, South Dakota Attorneys for appellee
A. MORENO of Moreno, Lee & Bachand, P.C. Pierre, South
Dakota Attorneys for appellee Georgia K. Hanson.
D. NORTHRUP of Riter, Rogers, Wattier & Northrup, LLP
Pierre, South Dakota Attorneys for appellee Angela L. Nix.
Elizabeth Nelson appeals a circuit court order approving the
redrafting of her husband Dean Nelson's will. The new
will eliminates a trust established for Elizabeth's
benefit consisting of Elizabeth's lifetime, one-half
interest in the residue of Dean's estate. The change in
the will was proposed upon the petition of Dean's
conservator, Chet Groseclose (Conservator), after Dean was
diagnosed with Alzheimer's disease. Elizabeth raises one
issue on appeal: whether the circuit court erred in
permitting Conservator to adopt the new will eliminating
Elizabeth's interest in the residuary estate. We reverse.
Dean Nelson owned and operated a successful farming operation
near Onida, South Dakota. Dean has four daughters from his
first marriage: Georgia Hanson, Deborah Bouchie, Carol
Nelson, and Angela Nix. In 1978, Dean married Elizabeth
Nelson. The pair lived in Onida, then moved to Las Vegas,
Nevada, where they currently reside.
On September 30, 2008, Dean and Elizabeth entered into a
postnuptial agreement, which replaced a prior prenuptial
agreement. In the postnuptial agreement, they agreed to the
disposition of Dean's property after his death, and
provided that Dean would not allow his durable power of
attorney to amend his will. Also in 2008, Dean made a will
acknowledging the postnuptial agreement and making other
testamentary gifts. The 2008 will provided that if Elizabeth
were to survive Dean, one-half of Dean's residuary estate
would be held in trust for Elizabeth. Under the trust,
Elizabeth was entitled to receive all net income and as much
of the principal as the trustees deemed necessary for
Elizabeth's health and comfort. Upon her death, the
remainder of the trust would pass in accordance with the
other half of the residue, which was to be distributed in
equal shares to three of Dean's four daughters.
In September of 2012, Dean drafted a new estate plan
including a pourover will and trust agreement. The trust
agreement acknowledged the postnuptial agreement and
essentially echoed the terms of the 2008 will, except that
the one-half of Dean's estate not belonging to Elizabeth
would be placed in trust for three of Dean's four
daughters. On February 11, 2013, Dean had yet another estate
plan drafted. This plan mirrored the 2008 and 2012 estate
plans but added Dean's fourth daughter to the trust made
up of half of his residuary estate.
After the 2013 plan was drafted, Dean was diagnosed with
Alzheimer's. On April 18, 2013, Conservator was
temporarily appointed to oversee Dean's estate. The
circuit court made the appointment permanent in September of
2013. Conservator petitioned the circuit court to change
Dean's February 11, 2013 estate plan. Among other things,
Conservator proposed replacing the 2013 plan with a newly
drafted will. The proposed will would omit ...