A valid will under South Dakota law must be:
- In writing;
- Signed by the testator or at the testator’s direction;
- Witnessed and attested by two witnesses in the conscious presence of the testator.
The requirements to make a valid will in South Dakota are found in SD Codified L § 29A-2-502.
Who Can Make a Valid Will In South Dakota?
An individual eighteen or more years of age who is of sound mind may make a valid will under South Dakota law. SD Codified L § 29A-2-501.
Sound mind under South Dakota law (to have testamentary capacity) has been defined as:
One has a sound mind, for the purposes of making a will, if, without prompting, he is able ‘to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property.’ In re Estate of Podgursky, 271 NW2d 52, 55 (SD 1978). Soundness of mind, for the purposes of executing a will, does not mean ‘that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health.’ Petterson v. Imbsen, 46 SD 540, 546, 194 NW 842, 844 (1923). Mere physical weakness is not determinative of the soundness of mind, In re Estate of Anders, 88 SD 631, 636, 226 NW2d 170, 173 (1975); and it is not necessary that a person desiring to make a will ‘ should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters.’ Petterson, 46 SD at 546, 194 NW at 844.
See In The Matter Of The Estate of Gilbert Dokken, an opinion from the South Dakota Supreme Court discussing testamentary capacity under South Dakota law.
A South Dakota Will Must Be Signed
South Dakota requires that a valid will must be “signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.” SD Codified L § 29A-2-502. A word of caution – unless it is physically necessary for someone other than the testator to sign the testator’s name, it is best practice for the testator to sign the will. Any irregularities in the execution of the will (even though legal under South Dakota law) could be used to challenge the validity of the will in a will contest.
A South Dakota Will Must Be Properly Witnessed
In addition to being in writing and signed by the testator or at the testator’s direction, a South Dakota will must also be “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.” SD Codified L § 29A-2-502.
Who May Witness a South Dakota Will?
An individual generally competent to be a witness may act as a witness to a South Dakota will.
The signing of a will by an interested witness (someone who is a beneficiary or fiduciary under the will) does not invalidate the will or any provision of it under South Dakota law. See SD Codified L § 29A-2-505.
Does a South Dakota Will Have To Be Notarized To Be Valid?
No, there is no requirement in South Dakota law that a will needs to be notarized in order to be valid. South Dakota law does permit a testator to make a will “self-proving,” which is done in front of a notary. Having a self-proving will speeds up the probate process because the witnesses do not have to testify as to the execution of the will – they have already done that by way of the self-proving affidavit.
The form for a South Dakota self-proving affidavit can be found at SD Codified L § 29A-2-504, and should be generally followed.
The best way to make sure that you have created a valid will under South Dakota law that carries out your testamentary wishes is to work with a South Dakota probate lawyer.