South Dakota Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – South Dakota

Note:    This summary is not intended to be an all inclusive discussion of the law of wills in South Dakota, but does contain basic and other provisions.  A discussion of hand written wills is not included.

Who may make a will: An individual eighteen or more years of age who is of sound mind may make a will. 29A-2-501

Execution: A will must be:
(1)     In writing;
(2)     Signed by the testator; and
(3)     Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator’s acknowledgment of that signature.

Intent that the document constitute the testator’s will can be established by extrinsic evidence, including. 29A-2-502.

Writings intended as wills, etc: Although a document or writing added upon a document was not executed in compliance with § 29A-2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(i) the decedent’s will,
(ii) a partial or complete revocation of the will,
(iii) an addition to or an alteration of the will, or
(iv) a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will. 29A-2-503.

Who may witness: An individual generally competent to be a witness may act as a witness to a will.    The signing of a will by an interested witness does not invalidate the will or any provision of it. 29A-2-505.

Self-Proved: A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer’s certificate, under official seal, in substantially the following form:

I, ________________, the testator, sign my name to this instrument this ______ day of ____________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Testator
We, ________________, ________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

______________________________

Witness

______________________________

Witness

The State of __________________
County of ________________________
Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.
(Seal)

(Signed)

____________________________

____________________________

(Official capacity of officer)

(b) An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form:
The State of __________________
County of ________________________
We,_____________, _____________, and _____________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator’s will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her]), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.

______________________________

Testator

______________________________

Witness

______________________________

Witness

Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.
(Seal)

Signed

____________________________

____________________________

(Official capacity of officer)

(c) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will’s due execution.
29A-2-504

Choice of law as to execution: A written will is valid if executed in compliance with South Dakota law, or if its execution complies with the law at the time of execution of the jurisdiction where the will is executed, or ofthe law of the jurisdiction where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.29A-2-506.

Revocation by will: A will or any part thereof is revoked:
(1)     By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(2)     By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the revocatory act touched any of the words on the will.  29A-2-507.

Incorporation by reference: A writing in existence when a will is executed may be incorporated by reference ifthe language of the will manifests this intent and describes the writing sufficiently to permit its identification.29A-2-510.

Separate writing identifying devise of certain types of tangible personal property: A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. 29A-2-513.

Contracts concerning succession: A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed on or after July 1, 1995, may be established only by (i) provisions of a will stating material provisions of
the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.29A-2-514.

Deposit of will with court in testator’s lifetime: A will may be deposited by the testator or the testator’s agent with any court for safekeeping. The will must be sealed and kept confidential. During the testator’s lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator’s death, the court shall notify any person designated to receive the will and deliver it to that person on request; or the court may deliver the will to the appropriate court.29A-2-515.

Duty of custodian of will — Liability: After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to an appropriate court or to a person able to secure its probate. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure.29A-2-516.

Penalty clause for contest: A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.29A-2-517.


Inside South Dakota Last Will and Testament Law