Estate of Schmeling

#30166-r-PJD
2024 S.D. 20IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
IN THE MATTER OF THE
ESTATE OF DENNIS G. SCHMELING,
Deceased.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT L. SPEARS
Judge
****
DANIEL K. BRENDTRO
BENJAMIN M. HUMMEL of
Hovland, Rasmus, Brendtro
& Trzynka, Prof. LLC
Sioux Falls, South Dakota Attorneys for appellants Dallas
Schmeling, Ronald Schmeling,
and Russell Schmeling, Jr.
LEE SCHOENBECK
JOE ERICKSON of
Schoenbeck & Erickson, P.C.
Watertown, South Dakota Attorneys for appellees Sharon
Schmeling, Scott Schmeling,
and John Schmeling.
****
CONSIDERED ON BRIEFS
OCTOBER 3, 2023
OPINION FILED 04/10/24
#30166
DEVANEY, Justice
[¶1.] Two brothers and one nephew of the decedent filed a petition
contesting the provisions in the decedent’s will devising farmland to the decedent’s
sister-in-law. The Estate moved for summary judgment, asserting that based on
this Court’s decision in In re Estate of Tank, 2020 S.D. 2, 938 N.W.2d 449, the
contestants could not show that the devise was the result of undue influence. The
circuit court agreed, concluding that the record contained no evidence showing that
the decedent had a testamentary disposition toward the contestants. The court also
determined that summary judgment was appropriate because the contestants did
not present evidence showing that the sister-in-law participated in the drafting of
the disputed will or engaged in acts of undue influence. The contestants appeal,
asserting the circuit court erred in granting summary judgment on grounds not
briefed or argued to the court and erred in concluding that under Tank summary
judgment was appropriate. We reverse and remand.
Factual and Procedural Background
[¶2.] Dennis Schmeling, and his four brothers, Dallas, Ronald, Russell Sr.,
and Glenn, grew up on the Schmeling family homestead in Codington County,
South Dakota. At some point, their mother transferred ownership of the homestead
to Dennis. Dallas claimed that Dennis was not a very good farmer or good at
breeding cattle and always had to rely on others to help him. Glenn helped Dennis
on the farm until Glenn passed away in 2010, after which Ronald and Dallas helped
Dennis.
-1-
#30166
[¶3.] Dennis never married and did not have any children. For some time,
he lived with Glenn and his wife, Sharon, in a house Dennis owned in South Shore,
South Dakota. Glenn and Sharon were allegedly taking care of Dennis while he
was experiencing health issues. After Glenn passed away in 2010, Dennis moved to
a home in Watertown, and Sharon and her son, John, moved out of the home in
South Shore. Although Dennis maintained contact with Sharon and John over the
years, Dallas claimed that Dennis had mixed feelings about them. For example,
Dallas testified that Dennis told him the farm will never go to John and that he had
heard people describe Sharon using unflattering terms.
[¶4.] By June 2021, Dennis was in poor health and was scheduled to
undergo surgery later in the month. On the Sunday before surgery, Dennis and
Dallas both attended church in South Shore. Dallas testified that during a
conversation after church, Dennis told him that this is “probably the last time I
walked out of the church alive[.]” Dallas claimed that he reassured Dennis, but he
also testified that this comment provoked a further conversation. Dallas asked
Dennis whether he had prepared a will, and Dennis replied that he had but then
said it was “probably not like I wanted it.” Dallas claimed that Dennis was crying
during this discussion.
[¶5.] Dennis underwent surgery on June 15, 2021, and on June 25, he died
after experiencing complications from the surgery. At the time of his death, he
owned three quarters of farmland in Codington County, the homes in Watertown
and South Shore, and personal property such as machinery and livestock. His
-2-
#30166
closest surviving relatives included brothers Dallas and Ronald and nephews
Russell Jr. (son of deceased Russell Sr.) and John (son of deceased Glenn).
[¶6.] Dennis executed two known wills during his lifetime—a 2002 Will and
a 2021 Will. The 2002 Will named Glenn’s son, John, as the sole beneficiary of
Dennis’s estate and devised to him all personal, real, and mixed property. This Will
did not specifically devise any property to Dennis’s brothers or to his nephew
Russell Jr. and did not contain a residuary clause. Dennis nominated Glenn to be
the personal representative, and if Glenn failed to or could not act, then he
nominated Sharon to be the personal representative.
[¶7.] Dennis executed the 2021 Will on June 10, 2021, shortly before his
death. This Will revoked all previous wills and appointed Sharon to be the personal
representative. Similar to the 2002 Will, Dennis did not specifically devise any of
his property to his then-living brothers or to Russell Jr. However, unlike the 2002
Will, Dennis devised 160 acres of the farmland to John, 160 acres to Sharon, and a
one-half interest in another 160 acres to Sharon with the other one-half interest to
John. The 2021 Will also devised the house in Watertown to his long-time friend
Patricia and his house in South Shore to Sharon. 1 Dennis did not include a
provision devising his personal property in this Will. He also did not include a
residuary clause, but in one provision, he directed that if there is not “anyone who
is, or might become entitled to receive benefits from [his] estate as provided [in the
specific bequests,]” then the portion of his “estate then remaining shall be paid over
and distributed outright to [his] heirs-at-law” as though he had died intestate.
1. At the time of his death, Dennis was living in the Watertown home with
Patricia.
-3-
#30166
[¶8.] On July 20, 2021, Sharon commenced an informal probate of Dennis’s
2021 Will and was appointed to be the personal representative. In September 2021,
Dallas, Ronald, and Russell Jr. (the Contestants) filed a petition challenging the
validity of the 2021 Will, claiming that it was the result of undue influence or, in
the alternative, that Dennis lacked testamentary capacity. The Contestants also
sought appointment of a new personal representative. After learning of the
existence of the 2002 Will, they amended their petition to challenge only those
portions of the 2021 Will devising property to Sharon on the basis that the devises
were the product of undue influence by Sharon. Although they again requested the
appointment of a new personal representative, they did not assert their alternative
claim that Dennis lacked testamentary capacity.
[¶9.] In regard to the Contestants’ challenge to portions of the 2021 Will
devising property to Sharon, the Estate filed a motion for summary judgment. In
its brief in support, the Estate identified the four elements the Contestants must
prove for their undue influence claim:
(1) the decedent’s susceptibility to undue influence; (2) an
opportunity to exert such influence and effect the wrongful
purpose; (3) a disposition to do so for an improper purpose; and,
(4) a result clearly showing the effects of undue influence.
Tank, 2020 S.D. 2, ¶ 33, 938 N.W.2d at 459 (quoting Stockwell v. Stockwell, 2010
S.D. 79, ¶ 35, 790 N.W.2d 52, 64). The Estate asserted that summary judgment is
warranted because the Contestants cannot prove element four “based upon the
controlling authority of the Estate of Russell O. Tank, 2020 S.D. 2, 938 N.W.2d 449.”
In particular, the Estate characterized this fourth element as a “causation element”
and argued that the Contestant cannot establish “that Dennis Schmeling
-4-
#30166
disinherited them because of alleged undue influence by Sharon” when, just as this
Court noted in Tank, there was “no evidence to show that [the decedent] had any
testamentary disposition toward [three of his children], even in the absence of any
alleged undue influence,” here, “Dennis Schmeling disinherited all three of the
[Contestants] as early as 2002” by not leaving any property to them in the 2002 or
2021 Wills. The Estate also argued that because John was the only one that stood
to inherit the farmland under the 2002 Will, John is the only one who can claim
that the 2021 Will is the result of Sharon’s undue influence. The Estate then noted
that John is not disputing the validity of the 2021 Will.
[¶10.] Prior to responding to the Estate’s summary judgment motion, the
Contestants filed a motion for partial summary judgment, seeking the following
rulings from the circuit court: (1) that Dennis did not disinherit them in either Will;
(2) that he expressly included them in his 2021 Will as heirs-at-law that would
inherit under certain circumstances; (3) that as heirs-at-law, they and John, would
inherit the residue of Dennis’s estate; and (4) that Dennis had a testamentary
disposition toward them at the time he made the 2021 Will. The Estate opposed the
motion, asserting that “the Contestants would need to show that the decedent had
some interest in leaving a testamentary disposition to them of his farm.” It further
argued that based on the 2002 and 2021 Wills, “the decedent had no interest in
making a testamentary disposition to the Contestants of his farmland[,]” and thus,
“[i]t doesn’t matter whether or not they were disinherited.” The Estate also
submitted, with its response, Dallas’s deposition testimony to support what it
deemed to be “additional undisputed material facts” to support these assertions.
-5-
#30166
[¶11.] In their brief opposing the Estate’s motion for summary judgment, the
Contestants argued that Tank is distinguishable because the three wills at issue in
Tank all contained a provision expressly disinheriting three of the decedent’s
children who were contesting his most recent will, and here, Dennis’s 2002 and
2021 Wills did not expressly disinherit them. Just as they noted in their brief in
support of their motion for partial summary judgment, the Contestants argued that
Dennis’s 2021 Will, by its terms, evinced a testamentary disposition toward them,
unlike the wills in Tank.
[¶12.] The circuit court held a hearing on the parties’ respective motions for
summary judgment wherein the parties reiterated the arguments made in their
written submissions. Thereafter, the court issued a memorandum decision. When
characterizing the grounds upon which the parties’ sought summary judgment, the
court incorrectly stated that the Contestants had filed a motion for summary
judgment on the allegations in their petition and amended petition that Sharon was
involved in the drafting of the 2021 Will and exerted undue influence on Dennis.
The court later more accurately referred to the limited basis asserted in the
Contestants’ partial summary judgment motion—“that the decedent did not
disinherit [them] and that the decedent had a testamentary disposition toward
them.”
[¶13.] In a similar fashion, when characterizing the Estate’s motion for
summary judgment, the court stated, incorrectly, that the Estate’s motion alleged
that “there are no facts presented on this record to support the allegations that
Sharon was involved in the drafting of the second Will, that she exerted undue
-6-
#30166
influence[.]” However, the court then stated, more accurately, that the Estate’s
motion alleged “that there are no facts that support the allegation that the decedent
had any desire to bequeath any of the farmland to the contestants.”
[¶14.] Ultimately, the circuit court denied the Contestants’ motion for partial
summary judgment and granted the Estate’s motion. Citing Tank, the court stated
that there was no evidence showing that Dennis had a testamentary disposition
toward the Contestants. The court also determined that there were no facts in the
record supporting that Sharon was involved in the drafting of the 2021 Will or that
she engaged in any acts that would constitute undue influence.
[¶15.] The Contestants filed a written objection to the circuit court’s decision
granting the Estate summary judgment, asserting that the issues before the court
on summary judgment concerned only “testamentary disposition/causation.” The
Contestants thus argued that the court “procedurally erred to the extent that it
granted summary judgment on matters outside the ‘causation’ issues raised in the
briefing.” In support of their objection, the Contestants attached as exhibits the
written discovery exchanged between the parties identifying specific witnesses and
the information they could provide to support the other elements of the Contestants’
undue influence claim. The court did not rule on this objection because on the same
day the Contestants filed their written objection, they filed a notice of appeal to this
Court challenging the court’s summary judgment order.
[¶16.] On appeal, the Contestants assert that the circuit court erred by
granting summary judgment on grounds not raised by the parties and further erred
-7-
#30166
by granting the Estate’s motion for summary judgment and denying their motion
for partial summary judgment.
Standard of Review
[¶17.] “We review de novo a circuit court’s decision to grant or deny summary
judgment.” Hoven v. Banner Associates, Inc., 2023 S.D. 33, ¶ 19, 993 N.W.2d 562,
568. “Summary judgment is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Niemitalo v. Seidel, 2022 S.D. 13, ¶ 12,
972 N.W.2d 115, 119 (quoting SDCL 15-6-56(c)).
Analysis and Decision
Whether the circuit court erred by granting the Estate’s
motion for summary judgment on grounds not raised by
the parties.
[¶18.] The Contestants argue that the parties’ motions for summary
judgment raised the narrow question whether the Contestants would be able to
prove the fourth element of their undue influence claim. The Contestants direct
this Court to the parties’ filings submitted to the circuit court and the Estate’s
statements of undisputed material facts. According to the Contestants, these filings
refer solely to the Contestants’ inability to prove the fourth element of undue
influence relating to causation based on the Estate’s view that the circumstances
here are akin to those at issue in Tank. The Contestants further note that their
own motion for partial summary judgment advanced the inverse argument—that
-8-
#30166
this case is unlike Tank because Dennis did not disinherit them and the 2021 Will
shows Dennis had a testamentary disposition toward them.
[¶19.] The Estate does not argue in response that it sought summary
judgment on any basis other than the one identified by the Contestants. Rather, it
notes that its “motion for summary judgment focused on the holding from Estate of
Tank, 2020 S.D. 2, ¶ 47, 938 N.W.2d 449, 462.” After listing all of the elements of
an undue influence claim, the Estate agrees that “[t]he fourth element is at issue on
this appeal[.]” Nevertheless, the Estate contends that reversible error did not occur
because “the Contestants did not develop or protect their record[,]” and according to
the Estate, the record supports the circuit court’s ruling. The Estate notes that this
Court can affirm the summary judgment decision if any basis in the record exists to
do so.
[¶20.] In Leonhardt v. Leonhardt, this Court noted that while the circuit
court “is not confined to the particular propositions of law advanced by the parties
on a motion for summary judgment[,]” there is a risk that “the party opposing the
summary judgment motion may be able to show that a genuine issue exists but has
not done so because the facts relating to the particular legal principles were not in
issue.” 2012 S.D. 71, ¶ 12, 822 N.W.2d 714, 717 (quoting Jaste v. Gailfus, 679
N.W.2d 257, 261 (N.D. 2004)). In response to this risk, the Court stated that the
circuit court should notify the parties of its intent to address issues not briefed or
argued by the moving party to “ensure[ ] that the parties have a meaningful
opportunity to develop the record and present all relevant evidence to the court.”
Id. (citing Heisler v. Metro. Council, 339 F.3d 622, 631 (8th Cir. 2003) (“It is
-9-
#30166
fundamentally unfair to the nonmoving party to require her to address issues not
addressed by the moving party in anticipation that the district court might rely on
some unidentified issue to grant the motion.”)).
[¶21.] Here, a review of the parties’ written and oral arguments to the circuit
court reveals that the only issue briefed and argued below is whether the
Contestants would be able to prove the fourth element of their undue influence
claim, namely, that the devises leaving portions of the farmland to Sharon in the
2021 Will were the result of undue influence. The court seemed to recognize the
limited issue before it during the summary judgment hearing based on a colloquy
with counsel for the Contestants. During this exchange, counsel for the Contestants
advised the court that in deciding their motion for partial summary judgment there
was no need to consider Dallas’s deposition testimony, but rather, the court need
only look at the wills and the relevant probate statutes to determine whether
Dennis disinherited the Contestants or had a testamentary disposition toward
them. The court then asked counsel for the Contestants whether they were
“alleging that the 2021 will was the product of undue influence[,]” but qualified its
question by stating, “I’m not asking that to put you guys on the spot now but now I
want to make sure I understand your comment when you said I don’t have to read
or reread a deposition.”
[¶22.] Then, in response to counsel’s request that the court clarify its
question, the court asked, “[I]s there any issue on [sic] the contestants that this will
was the result of undue influence?” Counsel for the Contestants replied, “So for
purposes of this motion that’s not something” that needs to be decided. (Emphasis
-10-
#30166
added.) The court then stated, “That’s not properly before me.” Counsel agreed,
noting that the question whether Sharon’s inclusion in the 2021 Will was the result
of undue influence is “a separate issue.”
[¶23.] The record also reflects that counsel for the Estate did not assert to the
circuit court that its motion for summary judgment challenged more than the fourth
element of an undue influence claim. In fact, the Estate likewise attempted to
clarify the issue before the circuit court. Counsel first stated that the court had
“read [Dallas’s] deposition correctly” that Dallas “was challenging everything[,]”
including that “[h]is brother wasn’t mentally competent” and the will was unduly
influenced. But then counsel reiterated its argument that summary judgment is
proper because as it relates to element four of the Contestants’ undue influence
claim, “there are no facts they’ve asserted that . . . [the] farmland would have went
to them[,]” and thus, they “can’t meet the causation element[.]”
[¶24.] Notably, it was the Estate, not the Contestants, that submitted
Dallas’s deposition testimony to the circuit court. Yet in doing so, the Estate did not
argue that Dallas’s deposition testimony warranted a determination that the
Contestants would be unable to prove that Sharon participated in the drafting of
the 2021 Will or engaged in acts of undue influence. Rather, the Estate relied on
the deposition to support its claims that Dennis and Ronald did not have a good
relationship for over a year because Ronald had been dishonest regarding a farming
matter and that there were hard feelings between Dallas and Dennis resulting from
Dennis getting the family homestead.
-11-
#30166
[¶25.] Based on the parties’ submissions and arguments, the Contestants
were not on notice that they needed to submit evidence to show a material issue of
fact in dispute on the other elements of their undue influence claim. However, the
Contestants must also show they were prejudiced. As we explained in Leonhardt,
“even if the parties did not receive adequate notice of the issue the court relied upon
in granting summary judgment, the court’s ruling may be affirmed if ‘the facts
before the . . . court were fully developed so that the moving party suffered no
procedural prejudice.’” Id. ¶ 14, 822 N.W.2d at 718 (quoting Bridgeway Corp. v.
Citibank, 201 F.3d 134, 139 (2d Cir. 2000)).
[¶26.] The Contestants argue that they were prejudiced by the circuit court’s
sua sponte determination that they failed to identify disputed material issues of fact
supporting that Sharon participated in the drafting of the 2021 Will or that she
engaged in acts constituting undue influence because the facts relating to these
elements were not fully developed. They note that the summary judgment hearing
was held when the parties were in the very early stages of discovery and that
Dallas’s deposition had been the only one taken. They further note that while
Dallas did not testify to direct evidence of Sharon’s wrongdoing, he did identify the
names of persons who would be aware of such information.
[¶27.] Because the court’s decision was based on a record that was not fully
developed, and because the other elements of the undue influence claim had not
been raised by either party in the respective summary judgment motions, the
Contestants were prejudiced when they were deprived of the ability to bring
-12-
#30166
forward evidence that would be relevant to these other issues. We thus conclude
that the circuit court’s error is not harmless. See Id. ¶ 14, 822 N.W.2d at 718.
Whether the circuit court erred by granting the Estate’s
motion for summary judgment.
[¶28.] Although the circuit court decided the summary judgment motions on
grounds not briefed or argued by the parties, the court also concluded, under Tank,
that the Contestants would be unable to establish the fourth element of their undue
influence claim. In so ruling, the court stated that the “decedent disinherited all of
the contestants from the farmland that is the main subject of this legal dispute” and
the Contestants did not present evidence that Dennis had a testamentary
disposition toward them.
[¶29.] On appeal, the Contestants claim the circuit court erred for the same
reasons they argued below: Tank is inapposite; Dennis did not disinherit them; and
the language of Dennis’s Wills shows he had a testamentary disposition toward
them. In response, the Estate argues that the Contestants, just like three of the
children in Tank, cannot prove that the 2021 Will was the result of undue influence
because, in the Estate’s view, Dennis disinherited them from the farmland in the
2002 Will by virtue of devising the land solely to John. The Estate further argues
that the Contestants’ status as heirs-at-law and the fact that they stood to inherit
the residuary estate does not evince that Dennis had any testamentary disposition
toward them to receive the farmland. The Estate thus asserts that, under Tank,
“there is no causation” as it relates to the 2021 Will because Dennis “had already
disinherited them” in the 2002 Will.
-13-
#30166
[¶30.] In Tank, the decedent, Russell, prepared three wills during his
lifetime. 2020 S.D. 2, ¶ 9, 938 N.W.2d at 453. In each of his wills, he expressly
disinherited three of his four children. On appeal, this Court determined that the
three disinherited children “failed to present any evidence showing ‘causation’
between any alleged undue influence by Bender and Russell’s decision to disinherit
each one of them in the 2004 will and, more particularly, in the 2012 will.” Id. ¶ 47,
938 N.W.2d at 462. The Court noted that there was no dispute Russell disinherited
them prior to the time the children alleged that undue influence occurred. The
Court also rejected these children’s claim that they, as the natural objects of
Russell’s bounty, could nevertheless prove that Russell’s unnatural disposition to
Bender in the 2004 and 2012 wills was the result of Bender’s undue influence. Id.
Even though the children were Russell’s heirs-at-law, Russell specifically
disinherited them, and they presented “no evidence to show that Russell had any
testamentary disposition toward them, even in the absence of any alleged undue
influence by Bender.” Id.
[¶31.] Contrary to the Estate’s view, Tank does not stand for the proposition
that a decedent’s decision to devise property to someone other than the party
contesting a will necessarily means the decedent disinherited the contestant.
Rather, the determination in Tank that three of the contestants were disinherited
was based on the fact that the decedent expressly disinherited them in each of his
wills. As SDCL 29A-2-101(b) provides, “[a] decedent by will may expressly exclude
or limit the right of an individual or class to succeed to property of the decedent
passing by intestate succession.” There being no language in Dennis’s Wills
-14-
#30166
expressly disinheriting the Contestants, the Estate’s reliance on Tank in this regard
is misplaced.
[¶32.] Further, the Estate either misconstrues or stretches the language in
Tank too far in arguing that the Contestants’ status as Dennis’s heirs-at-law is
immaterial because they did not present evidence that Dennis wanted the farmland
to go to them. The children in Tank relied solely on their status as heirs-at-law to
argue that even though they were disinherited in the wills, “Russell made an
unnatural disposition of his estate” to Bender, which in their view, “may support a
finding that the will was clearly a result of undue influence.” 2020 S.D. 2, ¶ 47, 938
N.W.2d at 462. Here, in contrast, the Contestants rely on their status as heirs-at-
law to refute the Estate’s claim that Dennis disinherited them in his Wills, and they
are pursuing this undue influence claim as heirs-at-law who could in fact inherit
property under the language in the Wills.
[¶33.] In particular, the Contestants note that Dennis did not, in either Will,
include a residuary clause and he did not in the 2021 Will include a provision
devising his personal property. They then direct this Court to SDCL 29A-2-101(a),
which provides that “[a]ny part of a decedent’s estate not effectively disposed of by
will or otherwise passes by intestate succession to the decedent’s heirs as prescribed
in this code, except as modified by the decedent’s will.” They thus note that
regardless of their undue influence claim, they will each, along with John, receive a
share of Dennis’s residue and personal property. They further note that Dennis
included language in his 2021 Will expressly providing that if the specifically
devised property could not be distributed as designated because the person to
-15-
#30166
receive the property is not in existence, the property is to be distributed to the heirs-
at-law. In their view, they are thus part of Dennis’s estate plan. Finally, they
assert that “[w]hatever the situation between Dennis and his relatives, it was not so
dire that he sought to exclude them. And, if anything, Dennis’s 2002 Will
demonstrates his clear intent for the farmland to stay in the family” because
Sharon, his sister-in-law, would never be an heir under the 2002 Will.
[¶34.] Because Dennis did not expressly disinherit the Contestants and
instead executed the 2021 Will under which they would inherit his personal
property and potentially his farmland, the scenario in Tank is different than the
one here. Moreover, the proper inquiry at this juncture is whether there is a
material issue of fact in dispute as to whether the devises to Sharon in the 2021
Will show the effect of her undue influence. In light of the undisputed facts that
Dennis did not devise any property to Sharon in the 2002 Will, that he changed his
Will shortly before his death, and that he specifically bequeathed half of his
farmland to Sharon in the 2021 Will, there are sufficient facts to avoid an adverse
summary judgment ruling on the limited question whether the 2021 Will was the
result of Sharon’s undue influence.
[¶35.] Nevertheless, the Estate argues that even if the Contestants prevail in
their challenge to the provisions in the 2021 Will devising property to Sharon, they
still “lose” because Dennis never intended the Contestants to receive the farmland.
-16-
#30166
In particular, the Estate relies on SDCL 29A-2-509(c), 2 SDCL 29A-2-507(d), 3 and
the general rule from In re Estate of Martin that “will construction favors a finding
of testacy over intestacy[,]” 2001 S.D. 123, ¶ 19, 635 N.W.2d 473, 476. The Estate
then argues that even if the devises in the 2021 Will are invalidated, the 2002 Will
would control and Dennis’s farmland would go to John rather than pass by
intestacy to Dennis’s heirs-at-law.
[¶36.] The Contestants disagree that the statutes cited by the Estate are
applicable under the circumstances or that the 2002 Will would control the
disposition of Dennis’s estate if the Contestants prevail on their undue influence
claim. They contend that because Dennis revoked the 2002 Will, that Will no longer
exists and “[t]hat should be the end of the discussion about the 2002 Will’s
significance.” They further assert that SDCL 29A-2-604(a), which provides that “[a]
devise, other than a residuary devise, that fails for any reason becomes a part of the
residue[,]” would control if the bequests to Sharon were found to be the product of
undue influence. Finally, they argue that because Dennis did not include a
2. SDCL 29A-2-509(c) provides: “If a subsequent will that revoked a previous
will in whole or in part is thereafter revoked by another, later, will, the
previous will or its revoked part is revived only to the extent that it appears
from the terms of the later will that the testator intended the previous will to
take effect.”
3. SDCL 29A-2-507(d) provides: “The testator is presumed to have intended a
subsequent will to supplement rather than replace a previous will if the
subsequent will does not make a complete disposition of the testator’s estate.
If this presumption arises and is not rebutted by clear and convincing
evidence, the subsequent will revokes the previous will only to the extent the
subsequent will is inconsistent with the previous will; each will is fully
operative on the testator’s death to the extent they are not inconsistent.”
-17-
#30166
residuary clause in the 2021 Will, under SDCL 29A-2-604(b), 4 the residue would
pass via intestacy to them and John as Dennis’s heirs-at-law.
[¶37.] While the Contestants presented this argument to the circuit court,
they did so in support of their claim that Dennis did not disinherit them and that he
demonstrated a testamentary disposition toward them. They were not asking the
court to determine how the property should be distributed in the event their undue
influence claim was successful. On appeal, the parties’ arguments in this regard
are now directed at this precise question. But what remedy or relief could be
obtained if the undue influence claim is successful need not be answered at this
juncture because this appeal concerns only whether the court erred in granting the
Estate’s motion for summary judgment on the basis that, under Tank, the
Contestants would be unable to prove that the devises in the 2021 Will to Sharon
were the result of undue influence. As to that question, because Tank does not
support summarily dismissing the Contestants’ undue influence claim and because
there are material issues of fact in dispute on the Contestants’ claim that the 2021
Will was the result of Sharon’s undue influence, the circuit court erred in granting
the Estate’s motion for summary judgment.
Whether the circuit court erred by denying the
Contestants’ partial motion for summary judgment.
[¶38.] The Contestants argue that they are entitled to partial summary
judgment on the question whether they were disinherited because, in their view,
“[i]t would be incorrect as a matter of law and fact for the Estate to argue or
4. SDCL 29A-2-604(b) provides in relevant part that “[a] residuary devise that
fails for any reason passes to the testator’s heirs[.]”
-18-
#30166
insinuate that Dennis ‘disinherited’ the Contestants from inheriting his real or
personal property.” It is undisputed that neither the 2002 Will nor the 2021 Will
contains language expressly disinheriting the Contestants, and to the extent the
circuit court’s denial of the Contestants’ motion suggested the court determined
otherwise, such a determination was erroneous.
[¶39.] Reversed and remanded.
[¶40.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,
concur.
-19-