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Estate of Fox

Supreme Court of South Dakota

March 13, 2019

ESTATE OF STANTON W. FOX, deceased.

          CONSIDERED ON BRIEFS ON JANUARY 7, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CARMEN MEANS Judge

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

          NANCY L. OVIATT JAMES C. ROBY 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.

          GILBERTSON, Chief Justice.

         [¶1.] 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 Lynelle submitted a copy of the former will for probate, while Stanton's siblings claimed the original prior will was revoked by the subsequent document.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 affirm.

         Facts and Procedural History

         [¶2.] On May 18, 2016, Stanton met with his attorney, John C. Wiles.[1] 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."

         [¶3.] 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 Stanton's death.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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 will.

         [¶8.] 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.

         [¶9.] 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.

         [¶10.] 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 ...


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