South Dakota Supreme Court Affirms Undue Influence Will Contest

In the April 1, 2020 opinion Estate of Gaaskjolen, the South Dakota Supreme Court affirmed an undue influence finding of the probate court and provided a guide to proving undue influence in a South Dakota will contest case.

The Facts Of Estate Of Gaaskjolen

In 1990, Dora Lee Gaaskjolen and her husband Marlin executed reciprocal wills giving their property to one another upon death.  Dora Lee and Marlin’s daughters, Audrey and Vicki, were named as equal, alternate beneficiaries.  The evidence presented showed that Dora Lee and Marlin took great lengths to treat their daughters equally.

In 1999, Audrey moved to the ranch to care for her parents.  Vicki lived about 30 miles away.  Marlin died in 2003.  In 2007, Dora Lee suffered a brain injury after a longhorn heifer kicked her.  Dora Lee did not fully recover from the injury and suffered from facial aphasia, making it difficult for her to speak in more than one or two-word responses.

In 2012, Audrey contacted an attorney, James Elsing, about preparing a new will for Dora Lee.

Audrey claimed that Dora Lee told Audrey that she wanted to exclude Vicki from her will and explained to Elsing why she disliked Vicki.  Elsing prepared a will leaving all property to Audrey without speaking to Dora Lee.  The drafting attorney sent the draft of the will to Audrey, and  Audrey made some changes.  The 2012 was executed at Dora Lee’s home.  Audrey arranged the presence of the witnesses to the will.

During this time period, Dora Lee was also the subject of a guardianship action.  Dora Lee’s guardianship attorneys learned how the will had been made and told Audrey there would be serious concerns about the validity under South Dakota law.  The attorneys suggested another will needed to be drafted.  Thereafter:

Elsing met with Dora Lee on December 14 and 18, 2012 concerning a new will. At the first meeting, Dora Lee verbally responded to a list of 26 questions prepared by Elsing concerning her property, capacity, and testamentary intentions. At the second meeting, Dora Lee answered similar “yes and no” questions on a written document by underlining her answers and wrote her answers to other questions. Elsing testified that he also read through the will with Dora Lee and confirmed that it expressed her wishes. Dora Lee then executed the will on December 18, 2012.  This second will was identical to the prior will signed on December 6, 2012. Elsing returned on January 7, 2013 to confirm the will reflected Dora Lee’s intentions. These meetings occurred at the ranch when Audrey was out of the room. However, Audrey made the arrangements for the visits. Audrey also arranged for two witnesses to be available when the new will was executed.

In May 2013 Dora Lee told an attorney that visited her that she did not remember signing a will, did not know who her attorney was, did not know what the changes were to her will, and thought that her children and grandchildren were the beneficiaries of her will.

Dora Lee signed a codicil in 2014 changing the nominated personal representative under the will from Audrey to U.S. Bank, but made no other substantive changes.

Dora Lee died in 2016.   A petition was filed to probate Dora Lee’s last will and codicil.

Vicki challenged the will and codicil, claiming Dora Lee lacked testamentary capacity and that Audrey had unduly influenced their mother.

After a trial, the South Dakota probate court determined that Dora Lee had testamentary capacity but invalidated the will and codicil based on undue influence.  The South Dakota Supreme Court affirmed.

When Does the Presumption of Undue Influence Arise In South Dakota?

Under South Dakota law, a “presumption of undue influence arises when there is a confidential relationship between the testator and a beneficiary who actively participates in preparation and execution of the will and unduly profits therefrom.”

This presumption shifts the burden “to the beneficiary to show he took no unfair advantage of the decedent. However, the ultimate burden remains on the contestant to prove the elements of undue influence by a preponderance of the evidence.”

Here, ample evidence was presented that a confidential relationship existed between Audrey and Dora Lee and that Audrey actively participated in making the will and codicil that benefited Audrey.  Audrey lived with Dora Lee, and Dora Lee depended on Audrey for nearly everything.  Audrey controlled access to visit and communicate with Dora Lee.  Audrey contacted the drafting attorney and directed them regarding the contents of the will.  She arranged for the witnesses, although she was not physically present in the room when the wills were executed.

A presumption of undue influence arose under South Dakota law.  Therefore, Audrey had the burden of producing evidence that she “took no unfair advantage of the decedent.”

What Evidence Can Rebut the Presumption of Undue Influence?

The presumption of undue influence under South Dakota law can be rebutted:

“When substantial, credible evidence has been introduced to rebut the presumption, it shall disappear from the action or proceeding, and the jury shall not be instructed thereon.” SDCL 19-19-301. We have stated that “‘substantial, credible evidence’ should not ordinarily be equated with meeting any particular burden of proof.” Dimond, 2008 S.D. 131, ¶ 9, 759 N.W.2d at 537. Rather, “the substantial, credible evidence requirement means that a presumption may be rebutted or met with such evidence as a trier of fact would find sufficient to base a decision on the issue, if no contrary evidence was submitted.” Id.

Evidence that has been found to rebut the presumption of undue influence includes evidence that:

  • the beneficiary never prevented anyone from communicating or visiting the decedent,
  • the new will was not inconsistent with the decedent’s general wishes, and
  • the decedent had independent legal advice when completing her last will.

In contrast, here, Audrey was in total control of who visited and communicated with Dora Lee, expressed ill will toward Vicki, and prevented Vicki from visiting.  Audrey was also active in the preparation and execution of the new will.

The Presumption of Undue Influence Can Be Rebutted By Showing “Independent Advice”

“The presumption of undue influence can be rebutted ‘by showing that the one allegedly over persuaded had independent advice that was neither incompetent nor perfunctory.'” The South Dakota Supreme Court cited to evidence that was not considered by the probate court in considering the presumption, stating:

Dora Lee’s housekeeper testified that Dora Lee expressed frustration to her about the conservatorship and that Vicki’s actions hurt her. Dora Lee also told the conservator that she wanted to disinherit Vicki because she was upset about the conservatorship. Dora Lee’s attorneys testified that Dora Lee expressed a desire to exclude Vicki from her estate plan. Elsing also testified about the multiple meetings and written questions he posed to Dora Lee to ensure that she wanted to disinherit Vicki. Attorneys Nooney, Schippers, and Elsing each testified that their client was Dora Lee, not Audrey. Based upon their interactions with Dora Lee, the attorneys testified that they did everything they could to ensure the will and codicil reflected what they believed to be Dora Lee’s testamentary intentions.

Because Audrey presented sufficient evidence to rebut the presumption of undue influence, the South Dakota Supreme Court was required to determine whether the probate court properly determined that Vicki met her burden of persuasion by proving undue influence with respect to Dora Lee’s last will and codicil.

Proving Undue Influence By Meeting The Burden Of Persuasion Under South Dakota Law

The contestant of a testamentary document has the burden of “prov[ing] each of the four elements of undue influence by the greater weight of the evidence.” Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at 291. These four elements are:

  1. decedent’s susceptibility to undue influence;
  2. opportunity to exert such influence and effect the wrongful purpose;
  3. a disposition to do so for an improper purpose; and
  4. a result showing the effects of such influence.

Susceptibility To Undue Influence

In considering whether an individual is susceptible to undue influence, “evidence of physical and mental weakness is always material . . . .” Borsch, 353 N.W.2d at 350. “Obviously, an aged and infirm person with impaired mental faculties would be more susceptible to influence than a mentally alert younger person in good health.” Id. (quoting Metz, 78 S.D. at 221, 100 N.W.2d at 398).

Here, the South Dakota court determined there was little question from the evidence that Dora Lee was susceptible to undue influence.  She had multiple medical problems that made it impossible for her to care for herself, including severe dementia, expressive aphasia, and a traumatic brain injury.  Dora Lee could not make phone calls, retrieve her own mail, use a computer, make a meal, or drive a car.

A Licensed Clinical Neuropsychologist concluded:

Secondary to her dense verbal aphasia, she sometimes responded with nonwords or with word substitutions, making it unclear as to whether she actually knew the answer to the question or not . . . . This woman appears to be very impaired from a neuropsychological perspective . . . . It is also very difficult to determine what she knows and does not know because of the word substitutions that occur.

Opportunity To Exert Undue Influence

Ample evidence was presented that Audrey had the opportunity to exert influence over Dora Lee.  Audrey lived with Dora Lee, and Dora Lee totally relied on Audrey for most aspects of her daily life.

Disposition to Unduly Influence For An Improper Purpose

The third element of undue influence is a disposition to unduly influence for an improper purpose.  This is “evident from persistent efforts to gain control and possession of testator’s property.”

The South Dakota Supreme Court stated:

The circuit court found that Audrey was predisposed to exert undue influence over Dora Lee, and the record supports that finding. Audrey played a major role in terminating Vicki’s lease of the north half of the family ranch that Dora Lee had previously leased to Vicki for several years. It was not until after Vicki refused to allow Audrey to lease the land that Audrey drafted and had Dora Lee sign the termination of the lease between Dora Lee and Vicki.

Audrey’s disposition to influence Dora Lee was also apparent in her feelings towards Vicki and her desire that Vicki not receive anything from Dora Lee. Audrey’s emails and communications with Vicki and others show that she disliked and was angry at her sister.

Result Clearly Showing the Effects of Such Influence

The fourth element of undue influence under South Dakota law is a result clearly showing the effects of such influence.  The will and codicil completely disinherit Vicki and leave Dora Lee’s entire estate to Audrey.  The codicil does not remove the taint of undue influence from the prior will, since Audrey’s influence was pervasive, and the disposition unnatural.

In affirming the decision of the South Dakota probate court, the South Dakota Supreme Court stated:

“[T]estamentary capacity and undue influence are non-technical, fact-based inquiries that require a trial court to examine the parties’ motives and states of mind.” Stockwell, 2010 S.D. 79, ¶ 16, 790 N.W.2d at 59. The circuit court entered findings on all four elements of undue influence and determined the evidence supported its conclusion that Dora Lee’s last will and codicil were subject to undue influence. The court also found Audrey’s testimony lacked credibility, and her denial of the claims of undue influence were confusing, evasive, and contradictory. There is substantial evidence to support all of the court’s findings. Therefore, the circuit court’s determination of undue influence by Audrey was not clearly erroneous.

This case provides an excellent overview of South Dakota undue influence law, and the evidence necessary for a successful will contest.

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