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Estate of Fox

Supreme Court of South Dakota

April 25, 2018

ESTATE OF STANTON W. FOX, Deceased.

          CONSIDERED ON BRIEFS ON JANUARY 8, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge

          JASON KW KRAUSE MATTHEW J. ABEL of The Krause Law Firm, P.C. Sioux Falls, South Dakota Attorneys for appellant Lynelle Herstedt.

          JAMES C. ROBY NANCY L. OVIATT of Green Roby Oviatt LLP Watertown, South Dakota Attorneys for appellee Kelly Fox.

          THOMAS F. BURNS Watertown, South Dakota Attorney for appellee Steven Fox.

          RORY KING of Bantz, Gosch & Cremer, LLC Aberdeen, South Dakota Attorneys for appellee Melanie Morrow.

          SEVERSON, Justice

         [¶1.] After Stanton W. Fox passed away, his long-time girlfriend Lynelle Herstedt filed an application for informal probate and for appointment as personal representative. The day after the clerk of courts issued the letters of appointment and statement admitting the will to informal probate, the circuit court entered an order revoking them. Lynelle appeals. Because the circuit court's order is not a final order from which an appeal can be taken, we dismiss Lynelle's appeal.

         Background

         [¶2.] Stanton passed away on September 15, 2017. Prior to his death and for over twenty years, Stanton had been in a relationship with Lynelle. The two never married but had been engaged to be married for over three years prior to Stanton's death. Stanton had no children at the time of his death.

         [¶3.] On October 11, 2017, Lynelle filed an "Application for Informal Probate and Appointment of Personal Representative In Testacy" with the Codington County Clerk of Court's Office. She included a supporting affidavit stating that Stanton died with a will dated January 7, 2016, and that the will nominated her as personal representative. Lynelle attached a copy (not the original) of the January 2016 will with the application and requested that she be appointed personal representative of Stanton's estate.

         [¶4.] Based on Lynelle's application and affidavit, the Codington County Clerk entered a "Clerk's Statement of Informal Probate and Appointment of Personal Representative" on October 11, 2017. On October 12, 2017, Stanton's brother Kelly Fox learned of Lynelle's appointment as personal representative. On the same day and through his counsel, Kelly petitioned the circuit court to revoke Lynelle's letters of personal representative and the clerk's statement. Kelly alleged that Lynelle's appointment was invalid because the original will was not included with the application and was not in the possession of the court as required by SDCL 29A-3-301(a)(2). Kelly's counsel included an affidavit and a proposed order revoking the letters of personal representative and clerk's statement.

         [¶5.] After reviewing the petition, the circuit court entered an order-on October 12, 2017-titled: "Order Revoking Letters of Personal Representative and Clerk's Statement of Informal Probate and Appointment of Personal Representative." The order revoked the letters appointing Lynelle as personal representative and directed that upon her receipt of notice of the order, Lynelle "shall cease all action as Personal Representative." Neither Lynelle nor her counsel had been advised of Kelly's petition prior to the court's order. On October 12, 2017, Lynelle's counsel was served electronically with the circuit court's order and the affidavit of Kelly's counsel.

         [¶6.] After learning that the letters had been revoked, counsel for Lynelle sent an email to the circuit court and counsel for Kelly requesting that the circuit court reinstate the letters appointing her personal representative and reinstate the clerk's statement. The court responded in an email, stating, "I will not proceed any further on any issues on this matter until the hearing wherein all sides will be ...


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