#26870-a-DG
2014 S.D. 54

                            IN THE SUPREME COURT

                                  OF THE

                        STATE OF SOUTH DAKOTA

                                   ****

                       IN THE MATTER OF THE
                 ESTATE OF ELLA BERNADETTE RICARD,
                             DECEASED.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                   ****

                THE HONORABLE JEROME A. ECKRICH, III
                              Judge

                                   ****
JEFFREY R. CONNOLLY
Gunderson, Palmer, Nelson
 & Ashmore, LLP
Rapid City, South Dakota

     and

JASON L. REED
Norton, Wasserman, Jones & Kelly, LLC
Salina, Kansas                              Attorneys for appellant
                                            Renee Laas.

MARLI A. SCHIPPERS
KURT E. SOLAY
ROBERT J. GALBRAITH
Nooney Solay & Van Norman, LLP
Rapid City, South Dakota                    Attorneys for appellee
                                            Personal Representative of the
                                            Estate, Kelly Ricard.
                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON MAY 27, 2014
                                            OPINION FILED 07/23/14
#26870

GILBERTSON, Chief Justice

[¶1.]        Appellant Renee Laas appeals from a circuit court order denying her

Petition to Set Aside Informal Probate and Declare Intestacy. Laas argues that

although the estate was completely settled by an order of the circuit court, the will

in question was never formally probated. Accordingly, Laas asserts that SDCL

29A-3-401 and SDCL 29A-3-108 allow her to file a petition to set aside informal

probate and declare intestacy, without regard to the final order that declared the

will valid and completely settled the estate. We affirm.

                       FACTS AND PROCEDURAL HISTORY

[¶2.]        Ella Ricard passed away on August 4, 2010. She was survived by five

children: Kelly Ricard, Mederic Ricard, Renee Laas, Anna Marsden, and Racette

Cuzzort. Ella left behind a Last Will and Testament, dated March 10, 2003. The

will named Ella’s son, Kelly Ricard, as the personal representative of the estate and

as the sole devisee.

[¶3.]        On September 29, 2010, Kelly filed an Application for Informal Probate

and Appointment of Personal Representative. The Clerk of the Fourth Judicial

Circuit signed the Clerk’s Statement of Informal Probate and Appointment of

Personal Representative the same day and issued Letters of Personal

Representative appointing Kelly as the personal representative of the estate. Kelly

provided notice of the informal probate and appointment of personal representative

to Ella’s surviving children.

[¶4.]        On February 24, 2012, Kelly filed an inventory of the estate. The

inventory listed the sole asset of the estate as a 48.14% interest in Ricard Ranch


                                          -1-
#26870

Limited Partnership. On the same day, Kelly filed a Petition for Complete

Settlement After Informal Probate Proceedings (Petition for Complete Settlement).

Notice was given to each of Ella’s heirs and proof of notice was filed with the circuit

court. The Petition for Complete Settlement requested the circuit court to

determine the will to be valid, determine the heirs of the decedent, approve an

accounting of the estate, distribute Ella’s limited partnership interest in Ricard

Ranch Limited Partnership to Kelly, and set conditions of the termination and

discharge of Kelly as personal representative.

[¶5.]        On March 16, 2012, Laas filed a Notice of Appearance through counsel

and filed a Motion to Continue Petition for Complete Settlement After Informal

Probate Proceedings. Laas also filed an affidavit with the circuit court alleging,

among other things, that Kelly “unduly influenced and coerced” Ella to rewrite her

will. The hearing on the Petition for Complete Settlement was continued to June

19, 2012, to give Laas time to conduct discovery regarding her allegations of undue

influence. Laas conducted no discovery, and filed no objections to the Petition for

Complete Settlement. A hearing was conducted on the Petition for Complete

Settlement as rescheduled on June 19, 2012. The circuit court entered an Order for

Complete Settlement, Determination of Heirs, and Adjudication of Testacy (Order

for Complete Settlement) on July 9, 2012.

[¶6.]        The Order for Complete Settlement detailed the above procedural

facts, including the fact that no written objections to the Petition for Complete

Settlement were ever filed by Laas. The order declared the will valid and

unrevoked. It named Racette Cuzzort, Renee Laas, Anna Marsden, Kelly Ricard,


                                          -2-
#26870

and Mederic Ricard as heirs of the decedent. The order also directed the personal

representative to distribute Ella’s partnership interest in Ricard Ranch Limited

Partnership to Kelly as directed in the will. The order terminated the appointment

of Kelly as the personal representative and discharged him from his duties. A

Notice of Entry of Order for Complete Settlement, Determination of Heirs, and

Adjudication of Testacy was served on all interested parties. Laas did not file an

appeal from the Order for Complete Settlement.

[¶7.]        On August 2, 2013, Laas filed a Petition to Set Aside Informal Probate

of Will and Determine Intestacy, again alleging undue influence. In the petition,

Laas asserted that SDCL 29A-3-401, in conjunction with SDCL 29A-3-402,

permitted Laas to petition to set aside the prior probate, within three years of the

decedent’s death. Ricard responded that the estate was formally closed by the

Order for Complete Settlement and that the order was conclusive as to the validity

of the will. A hearing on Laas’s petition was held on October 8, 2013. After the

hearing the circuit court determined that the Order for Complete Settlement was

final and appealable and that Laas had failed to appeal the order. The circuit court

denied Laas’s Petition to Set Aside Informal Probate and Determine Intestacy. On

appeal, Laas asks us to determine whether a petition to set aside informal probate,

under SDCL 29A-3-401, is allowed in this case despite the issuance of a final,

appealable order determining the will to be valid.

                             STANDARD OF REVIEW

[¶8.]        Laas’s appeal raises issues of statutory interpretation. As we have

stated:


                                          -3-
#26870

             Questions of law such as statutory interpretation are reviewed
             by the Court de novo. . . . The purpose of statutory construction
             is to discover the true intention of the law which is to be
             ascertained primarily from the language expressed in the
             statute. The intent of a statute is determined from what the
             legislature said, rather than what the courts think it should
             have said, and the court must confine itself to the language
             used. Words and phrases in a statute must be given their plain
             meaning and effect. When the language in a statute is clear,
             certain and unambiguous, there is no reason for construction,
             and the Court’s only function is to declare the meaning of the
             statute as clearly expressed. Since statutes must be construed
             according to their intent, the intent must be determined from
             the statute as a whole, as well as enactments relating to the
             same subject. But, in construing statutes together it is
             presumed that the legislature did not intend an absurd or
             unreasonable result.

In re Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d 141, 143 (alteration in

original) (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600,

611).

                           ANALYSIS AND DECISION

[¶9.]        Laas argues that SDCL 29A-3-108 and SDCL 29A-3-401 allow an

interested person to file a petition for formal administration of a will any time

within three years of the decedent’s death, even after a complete settlement of the

estate. SDCL 29A-3-108 provides in part:

             No informal probate or appointment proceeding or formal
             testacy or appointment proceeding, other than a proceeding to
             probate a will previously probated at the testator’s domicile and
             appointment proceedings relating to an estate in which there
             has been a prior appointment, may be commenced more than
             three years after the decedent’s death, except:
             ...
             (3) A proceeding to contest an informally probated will and to
             secure appointment of the person with legal priority for
             appointment in the event the contest is successful, may be
             commenced within the later of twelve months from the informal
             probate or three years from the decedent’s death . . . .

                                          -4-
#26870

Furthermore, SDCL 29A-3-401 provides:

             (a) A formal testacy proceeding is a proceeding conducted before
             the court to establish a will or determine intestacy. A formal
             testacy proceeding may be commenced by an interested person
             filing a petition as described in § 29A-3-402 requesting that the
             court, after notice and hearing, enter an order probating a will,
             an order setting aside an informal probate of a will, an order
             preventing informal probate of a will which is the subject of a
             pending application, or an order that the decedent died
             intestate.
             (b) A petition may request formal probate of a will without
             regard to whether the same or a conflicting will has been
             informally probated. A formal testacy proceeding may, but need
             not, involve a request for appointment of a personal
             representative.

Laas asserts that nothing in SDCL 29A-3-401 indicates that a petition for formal

administration may only be used prior to a complete settlement. Moreover, Laas

argues that the circuit court never formally probated Ella’s will. Rather, Laas

contends that the circuit court’s Order for Complete Settlement marked the

conclusion of informal probate of the will. Accordingly, Laas asserts that the circuit

court should entertain her Petition to Set Aside Informal Probate and Declare

Intestacy because it was filed within three years of Ella’s death.

[¶10.]       Conversely, Kelly argues that Ella’s will was formally probated when it

was declared valid during the hearing on the Petition for Complete Settlement. As

such, he contends that SDCL 29A-3-401 does not allow Laas’s petition.

Furthermore, Kelly asserts that the Order for Complete Settlement was a final,

appealable order that was conclusive as to issues raised in Laas’s petition pursuant

to SDCL 29A-3-1001(e). Accordingly, Kelly argues that the circuit court was correct

in denying Laas’s petition. We agree.



                                          -5-
#26870

[¶11.]         First, Laas asserts that Ella’s will was never formally probated. Laas

claims that the Order for Complete Settlement was merely the conclusion to

informal proceedings, and therefore her petition was valid because SDCL 29A-3-

401(b) allows such a petition “without regard to whether the same or a conflicting

will has been informally probated.” Laas’s reliance on SDCL 29A-3-401(b) is

misplaced. By the time Laas filed her petition under SDCL 29A-3-401(b), Ella’s will

had already been formally probated as to the issues contained in Laas’s petition.

This included a determination central to the present dispute—the validity of Ella’s

will.

[¶12.]         Under South Dakota probate law, informal proceedings are defined by

statute as those “conducted without notice to interested persons by the clerk of

court.” SDCL 29A-1-201(22). Conversely, formal proceedings are defined by statute

as those “conducted before a judge with notice to interested persons.” SDCL 29A-1-

201(18). The statutory scheme in South Dakota contemplates the use of a mixture

of formal and informal probate proceedings. 1 With regard to petitions for complete

settlement, SDCL 29A-3-1001(c) states that the court “may enter the appropriate

orders” requested by a petition for complete settlement, but only “[a]fter notice to all

interested parties and hearing[.]” This requirement of notice and a hearing subjects




1.       See SDCL 29A-3-302 (“Informal probate is conclusive as to all persons until
         superseded by an order in a formal testacy proceeding.”). Generally, what
         may have started as an informal proceeding can transform into a formal
         process by filing a petition, giving notice, and having a hearing before a
         judge. See SDCL 29A-3-401(a).


                                           -6-
#26870

petitions for complete settlement to formal proceedings, as defined by SDCL 29A-1-

201(18).

[¶13.]         The parties do not dispute that Kelly initiated the probate of Ella’s will

informally. However, Kelly’s Petition for Complete Settlement, and the

corresponding notice and hearing, transformed the informal nature of this process.

As contemplated by SDCL 29A-3-1001(b), Kelly’s Petition for Complete Settlement

requested a determination of testacy status and heirs, approval of accounting, and

final settlement and distribution of the estate. The Petition for Complete

Settlement requested a hearing on those issues. The hearing held pursuant to the

petition was a formal probate proceeding, because it was before a judge, with notice

given to interested parties as to the matters to be determined—including the

validity of the will. See SDCL 29A-1-201(18). Additionally, the Petition for

Complete Settlement met all the requirements of a petition for formal probate of a

will. 2 Accordingly, we conclude that the will was formally probated. As such, SDCL



2.       SDCL 29A-3-402 provides in pertinent part:
              (a) Petitions for formal probate of a will, or for adjudication of intestacy
              with or without request for appointment of a personal representative,
              shall be directed to the court, request a judicial order after notice and
              hearing and contain further statements as indicated in this section.
              (b) A petition for formal probate of a will shall:
                     (1) Request an order determining the heirs and the testacy of
                     the decedent in relation to a particular instrument which may or
                     may not have been informally probated;
                     (2) Contain the statements required for informal applications as
                     stated in the six paragraphs under subsection 29A-3-301(a)(1),
                     the statements required by paragraphs (ii) and (iii) of subsection
                     29A-3-301(a)(2); and
                     (3) State whether the original of the last will of the decedent is
                     in the possession of the court or accompanies the petition.

                                                               (continued . . .)
                                            -7-
#26870

29A-3-401(b) does not permit Laas’s Petition to Set Aside Informal Probate and

Declare Intestacy.

[¶14.]       Laas also alleges that the pleadings failed to indicate that the estate

was being handled through a formal process. She emphasizes that the title of the

document filed by Ricard indicated that it was a petition for complete settlement

after informal administration. Laas’s argument exalts form over substance. See

Schwartz v. First Nat’l Bank in Sioux Falls, 390 N.W.2d 568, 570 (S.D. 1985)

(citations omitted) (“[T]he character of an action is ordinarily determined by the

substance of the whole statement and the nature of the grievance, rather than the

form of the pleading.”). Although Kelly’s petition was entitled, “Petition for

Complete Settlement After Informal Probate Proceedings,” the body of the petition

indicated that Kelly was requesting a formal proceeding. The petition requested

the circuit court to determine the testacy status and distribution of the estate “after

notice and a hearing.” Laas was provided a copy of the Petition for Complete

Settlement and given notice of the hearing. Accordingly, we are not convinced that

the interested parties were unaware of the formal nature of the proceedings.

[¶15.]       Finally, Laas argues that SDCL 29A-3-401 must be interpreted to

allow a petition to set aside an informal probate and declare intestacy in this case,

because a party in Laas’s position has no other way of challenging a will once a


________________________
(. . . continued)
         The Petition for Complete Settlement in this case included all the required
         elements of this statute, either on the face of the petition or through
         reaffirmation of the Application for Informal Probate and Appointment of
         Personal Representative, referenced in the Petition for Complete Settlement.


                                          -8-
#26870

personal representative has submitted a petition for complete settlement. SDCL

29A-3-1001(a) provides in part that a petition for complete settlement filed by a

personal representative “shall be granted as a matter of course, but other petitions

shall be granted only if there is good cause.” Laas argues that under this language

the circuit court could not have entertained any objection to Kelly’s Petition for

Complete Settlement or the Order for Complete Settlement because the circuit court

was bound “as a matter of course” to grant Kelly’s petition.

[¶16.]         Laas fails to point to any place in the record where Laas attempted to

object to the petition for complete settlement, but was precluded from doing so

because of SDCL 29A-3-1001(a). Laas is also unable to cite any South Dakota

decision supporting her conclusion that the statute prevented her from raising an

objection. 3 Nevertheless, Laas argues a hypothetical: that she would have been

prevented from raising an objection to the Petition for Complete Settlement had she

attempted to do so. “We do not answer hypothetical questions or dispense advisory

opinions.” Metro. Life Ins. Co. v. Kinsman, 2008 S.D. 24, ¶ 10, 747 N.W.2d 653, 658

(citation omitted). Furthermore, “[w]e have repeatedly stated that we will not

address for the first time on appeal issues not raised below.” Casey Ranch Ltd.

P’ship v. Casey, 2009 S.D. 88, ¶ 5 n.1, 773 N.W.2d 816, 819 n.1 (citation and

quotation omitted). Laas did not raise any timely opposition to the Petition for


3.       Laas points to case law from other jurisdictions holding that opposition to a
         petition for complete settlement is an inappropriate vehicle to challenge the
         validity of a will and that an order of final settlement does not preclude the
         contest of a will. See Estate of Ulrickson, 704 A.2d 344 (Maine 1997); Foley v.
         O’Donaghue, 77 N.E. 352 (Ind. 1906). However, these cases were not
         interpreting South Dakota law, nor has this Court adopted the reasoning of
         these cases.

                                            -9-
#26870

Complete Settlement before the circuit court. Accordingly, we decline to address

whether SDCL 29A-3-1001(a) would preclude an interested party from objecting to

a petition for complete settlement filed by a personal representative.

                                  CONCLUSION

[¶17.]       We conclude that the estate in this case was completely settled and

closed in a formal probate proceeding. Because Laas had notice of this proceeding,

the Order for Complete Settlement is conclusive as to her claims, including the

circuit court’s determination that the will submitted to probate was valid.

Accordingly, the circuit court did not err when it denied Laas’s Petition to Set Aside

Informal Probate and Declare Intestacy. We affirm.

[¶18.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




                                         -10-
