ESTATE OF STANTON W. FOX, deceased.
CONSIDERED ON BRIEFS ON JANUARY 7, 2019
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CARMEN MEANS
KW KRAUSE MATTHEW J. ABEL of The Krause Law Firm, P.C. Sioux
Falls, South Dakota Attorneys for appellant Lynelle Herstedt.
L. OVIATT JAMES C. ROBY of Green, Roby & Oviatt LLP
Watertown, South Dakota Attorneys for appellee Kelly Fox.
F. BURNS Watertown, South Dakota Attorney for appellee Steven
KING of Bantz, Gosch & Cremer, LLC Aberdeen, South Dakota
Attorneys for appellee Melanie Morrow.
GILBERTSON, Chief Justice.
Stanton Fox passed away in Watertown, South Dakota on
September 15, 2017. He was unmarried and had no children, but
was survived by five siblings: Steven Fox, Melanie Morrow,
Cordell Fox, Taylor Fox, and Kelly Fox. Stanton and Appellant
Lynelle Herstedt (Lynelle) were in an intimate relationship
for over twenty years before Stanton's passing, but the
relationship ended prior to his death. Although Stanton
drafted a will in 2015, before he died he drafted a
handwritten document that stated he wished to revoke all
prior wills and codicils. Lynelle submitted a copy of the
former will for probate, while Stanton's siblings claimed
the original prior will was revoked by the subsequent
document. The circuit court held a hearing on various
petitions and motions and ultimately found that Stanton had
died intestate, determined Stanton's heirs, and entered
letters for co-personal representatives. Lynelle appeals
several aspects of the circuit court's rulings. We
and Procedural History
On May 18, 2016, Stanton met with his attorney, John C.
Wiles. The pair discussed Stanton's
relationship with Lynelle and the fact that it had come to an
end. Wiles asked Stanton if he had a will and durable power
of attorney. Stanton replied that he did, but when Wiles
asked him if he wanted Lynelle involved in making medical
decisions, Stanton replied "absolutely not." Wiles
then asked Stanton if Lynelle was involved in the will and he
answered "yes." Wiles testified that Stanton told
him he did not want Lynelle to participate in his estate upon
his death. Wiles then testified that he advised Stanton to
revoke his will and power of attorney in writing and to
"physically get rid of the documents."
That same day, while at Wiles's desk, Stanton handwrote a
document to revoke his will and his power of attorney. The
document stated: "I hereby revoke all prior wills and
codicils ever made or executed by me." Stanton signed
the document in front of Wiles and Wiles's secretary and
dated it May 18, 2016. After the document was signed, Wiles
testified that he told Stanton to destroy his will and power
of attorney. Wiles stated that Stanton said he would do so.
Wiles retained the original revocation of all prior wills and
had the original in his possession at the time of
On July 21, 2017, Stanton spoke to Page Fox, his brother
Kelly's wife, over the phone. In that conversation,
Stanton informed Page that he had Lynelle evicted from his
home and that Stanton and Lynelle's relationship was
over. Page stated that Stanton "thought he wasn't
going to be here much longer with his illness." She also
stated that Stanton told her that: (1) he destroyed his
former will; (2) he did not have a new one; (3) he named
Kelly as beneficiary of his life insurance; and (4) he wanted
to make sure part of the insurance proceeds went toward
Kelly's and Page's daughter's education.
On September 19, 2017, Stanton was found dead in his home.
Kelly was the first family member notified of Stanton's
death. He and Page traveled to Watertown and went directly to
Stanton's home. After police determined that Stanton had
died of natural causes, they gave Kelly and Page a key to
Stanton's home and suggested they look for anything
pertinent to Stanton's death. Kelly and Page claimed they
searched the house, basement, garage, under stairs, and in
drawers, closets, file cabinets, and boxes. They also claimed
to have looked in a specific area where Stanton had told his
brother Steven the will would be located. They did not find a
will or power of attorney.
During the search of Stanton's home, family members
discovered a key and lease agreement for a safe-deposit box
at Wells Fargo Bank. The lease showed Stanton as the primary
lessee and Lynelle as secondary lessee. On September 26,
2017, Lynelle advised Steven and Kelly's attorney, James
C. Roby, that the safe deposit box may have contained
Stanton's will. Lynelle, her attorney, and Roby went to
Wells Fargo and opened the safe-deposit box later that day.
The box contained a few documents including a copy of
Stanton's will, but not the original.
On October 11, 2017, Lynelle filed an application for
informal probate with the Codington County Clerk of Court.
Lynelle attached the document found in the safe-deposit box
to the application, claiming it was a photocopy of
Stanton's original January 7, 2016, will. The county
clerk issued letters of personal representative the same day.
The next day, the circuit court entered an order revoking the
letters of personal representative and clerk's statement
of informal probate and appointment of personal
representative because Lynelle had not presented the original
On October 13, October 17, and November 8, 2017,
respectively, Kelly, Steven, and Melanie (Appellees) filed
and served their formal petitions for adjudication of
intestacy, determination of heirs, and appointment of
personal representative. On October 16, 2017, Wiles filed an
affidavit with a copy of the purported revocation of wills
attached. A hearing on Kelly's and Steven's petitions
was set for November 1, 2017.
Lynelle then appealed the circuit court's revocation of
letters of personal representative, clerk's statement of
informal probate, and appointment of personal representative
to this Court. In In re Estate of Fox (Fox I), 2018
S.D. 35, 911 N.W.2d 746, 750, we held that the circuit
court's order of revocation did not end "the
particular action in which it was entered and [left] nothing
further for the court pronouncing it to do in order to
completely determine the rights of the parties as to that
proceeding." (quoting In re Estate of Geier,
2012 S.D. 2, ¶ 13, 809 N.W.2d 355, 358). Because the
order was not an appealable order under SDCL 15-26A-3 over
which this Court had jurisdiction, we were required to
dismiss the case. Id.
Following the dismissal of Fox I, Appellees asked to
schedule a hearing for their respective petitions on May 31,
2018. The circuit court granted the request, and the parties
served notice of the hearing on Lynelle. On May 11, 2018,
Lynelle filed and served a motion for scheduling order, a
petition for special administrator, and a petition to
commence a formal testacy proceeding. After the May 31
hearing, the circuit court granted the Appellees'
petitions and entered findings of fact and conclusions of
law, an order of intestacy, a determination of heirs and
appointment of co-personal representatives in intestacy, and
separate letters of co-personal representative to each of the
Appellees. The Appellees all signed and filed their
acceptance of appointment as co-personal representatives. The
circuit court denied Lynelle's proposed scheduling order
and proposed order for a special administrator.
[¶11.] Lynelle now appeals the circuit court's
decision, asserting several issues for our review, which ...