#27254, #27261-a-GAS

2015 S.D. 47

                          IN THE SUPREME COURT

                                  OF THE

                         STATE OF SOUTH DAKOTA

                                  ****

                 ESTATE OF DELBERT ANDREW DEUTSCH,
                               deceased.

                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIFTH JUDICIAL CIRCUIT
                   MARSHALL COUNTY, SOUTH DAKOTA

                                  ****

                  THE HONORABLE RICHARD A. SOMMERS
                               Judge

                                  ****
ROY A. WISE
ZACHARY W. PETERSON of
Richardson, Wyly, Wise, Sauck
 & Hieb, LLP
Aberdeen, South Dakota                     Attorneys for respondent and
                                           appellant Marcelina M.
                                           Deutsch.


GORDON P. NIELSEN
DAVID A. GEYER of
Delaney, Nielsen & Sannes, P.C.
Sisseton, South Dakota                     Attorneys for petitioners and
                                           appellees Hillary Schuster aka
                                           Larry Schuster and Ronald
                                           Jaspers.

                                  ****
                                           CONSIDERED ON BRIEFS
                                           ON MAY 26, 2015
                                           OPINION FILED 06/17/15
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SEVERSON, Justice

[¶1.]        Delbert Deutsch’s nephews petitioned for formal probate of a copy of

Deutsch’s 2001 will when no original was found despite a careful and exhaustive

search by Deutsch’s widow Marcelina and her son. The copy was admitted to

probate after the court was reasonably satisfied that Deutsch had not revoked the

will. Marcelina appeals. We affirm.

                                    Background

[¶2.]        Delbert Deutsch died on August 23, 2012. Marcelina and her son

found a copy of a 2001 will on top of Delbert’s desk among other papers he

considered important. The circuit court found that Marcelina and her son made a

careful and exhaustive search but could not find an original will. Marcelina filed an

application for informal intestate probate and appointment of personal

representative on April 3, 2013. She filed a copy of the 2001 will with the

application. On August 28, 2013, Hillary Schuster (“Larry”) and Ronald Jaspers

(“Ronald”), Delbert’s nephews, filed a petition for formal probate of the copy of the

will and for determination of heirs. The court held a trial on April 15, 2014 to

determine whether to admit the copy of the 2001 will to probate.

[¶3.]        The attorney who prepared the will died in 2008, and the attorney’s

employees testified that they did not know whether the original will was given to

Delbert or retained by the attorney. The attorney’s employees explained that the

attorney normally would send originals with his clients, but he did keep some

originals.




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[¶4.]        Larry and Ronald each live within a few miles of Delbert and

Marcelina’s farm, and both would receive real estate under the 2001 will. Delbert

gifted Larry six acres of land in 1993. Larry’s home is located on the six acres, and

he has lived there since approximately 1993. Both nephews testified that they had

a close relationship with Delbert that began when they were young. They helped

Delbert with farming and Delbert helped them in return. Delbert loaned $5,000,

interest-free, to Ronald and gave him other small gifts of money over the years. In

2012, Delbert told Larry that the land surrounding the six acres would be Larry’s

one day. The land surrounding Larry’s home was owned by Delbert and bequeathed

to Larry under the 2001 will, along with additional real estate.

[¶5.]        Marcelina testified that Delbert did not discuss estate planning with

her and she did not know about the existence of the 2001 will. Under the 2001 will,

Mario, Marcelina’s son from a prior marriage, would only receive Marcelina’s share

of the estate if she predeceased Mario. Some of the real estate left to Marcelina in

the 2001 will was sold by Delbert in 2008. According to Marcelina, an attorney

helped with the 2008 sale, and Delbert mentioned that he would need to make an

appointment with this attorney to make a will. However, Delbert never scheduled

an appointment.

[¶6.]        Ultimately, the court determined that it was reasonably satisfied that

the lost will was not revoked by Delbert. Marcelina appeals, arguing that the court

erred by admitting the copy of the will to probate. Larry and Ronald also appeal.

They contend that the circuit court erred by denying their request for

reimbursement of attorney’s fees.


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                                 Standard of Review

[¶7.]        The parties dispute the applicable standard of review. Marcelina

contends that the court’s “misapplication of SDCL 29A-3-402(d) should be reviewed

de novo.” Although Marcelina attempts to present this case as one involving

statutory interpretation and application, her issue on appeal questions whether the

court erred in concluding that the will was not revoked. We review the circuit

court’s determination that a lost will was not revoked under the clearly erroneous

standard. In re Estate of Gustafson, 2007 S.D. 46, ¶ 7, 731 N.W.2d 922, 925.

                                       Analysis

[¶8.]        “[W]hen a careful and exhaustive search fails to produce the original

will[,]” a presumption arises that the will has been revoked. Estate of Gustafson,

2007 S.D. 46, ¶ 9, 731 N.W.2d at 925. Proponents of a lost will have the burden to

overcome the presumption that it was revoked. Id. A copy of a will may be

admitted to probate if “at least one credible witness” can testify that “the copy is a

true copy of the original” and if the circuit court is “reasonably satisfied that the

will was not revoked by the testator.” SDCL 29A-3-402(d); Estate of Gustafson,

2007 S.D. 46, ¶ 8, 731 N.W.2d at 925. The statute provides in relevant part:

             If the original will . . . is not available, the contents of the will
             can be proved by a copy of the will and the testimony or affidavit
             of at least one credible witness that the copy is a true copy of the
             original, and the will may be admitted to probate if the court is
             reasonably satisfied that the will was not revoked by the
             testator.

SDCL 29A-3-402(d). “The ‘reasonably satisfied’ standard of proof is low and

requires a ‘minimal level of certainty.’” Estate of Gustafson, 2007 S.D. 46, ¶ 9, 731

N.W.2d at 925 (quoting State v. Bailey, 464 N.W.2d 626, 628 (S.D. 1991)).

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[¶9.]        Two witnesses testified that the copy presented was a copy of the

original will signed by Delbert. The parties are not disputing whether the copy is a

true copy; they are only disputing whether the will was revoked. Further, neither

party contests the adequacy of the search. The circuit court recognized that a

presumption of revocation existed, but concluded that Larry and Ronald overcame

the presumption. The court determined that the best evidence to rebut the

presumption of revocation was Delbert’s “acts and declarations.” It found that

Delbert had contemplated the property disposition for many years and that his close

relationship with his nephews remained the same between the execution of his will

and the time of his death. The court further found that Delbert informed Larry as

recently as 2012 that Larry would be receiving real estate upon Delbert’s death. It

also determined that Delbert left the will in a location where he knew it would be

found.

[¶10.]       Marcelina states that Larry and Ronald “presented no direct evidence

proving that Delbert did not revoke the will.” She also contends that the close

relationship that Delbert had with his nephews has no bearing on whether Delbert

revoked the will; nor does the location of the copy of the will. Additionally,

Marcelina points out that the conversations between Delbert and Larry never

specifically referenced the 2001 will and that Larry’s testimony is unsubstantiated

and self-serving. However, “[t]he presumption may be rebutted by evidence,

circumstantial or otherwise, which ‘reasonably satisfies’ the [circuit] court that the

will was not revoked.” Estate of Gustafson, 2007 S.D. 46, ¶ 9, 731 N.W.2d at 925.




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[¶11.]       It is important to note that “there are no . . . express limitations as to

what needs to be proved to rebut the presumption. The only requirement is that,

given all the evidence, the [circuit] court must be ‘reasonably satisfied’ that the will

was not revoked.” In re Estate of Long, 1998 S.D. 15, ¶ 15, 575 N.W.2d 254, 257.

Marcelina’s arguments relate to the sufficiency of the evidence presented in this

case. However, “‘[t]he credibility of the witnesses, the import to be accorded their

testimony, and the weight of the evidence must be determined by the [circuit] court,

and we give due regard to the [circuit] court’s opportunity to observe the witnesses

and examine the evidence.’” Estate of Gustafson, 2007 S.D. 46, ¶ 13, 731 N.W.2d at

926 (quoting In re Estate of Schnell, 2004 S.D. 80, ¶ 8, 683 N.W.2d 415, 418). The

court need only have a minimal level of certainty that the will was not revoked.

Delbert’s ongoing relationship with his nephews and his conversation with Larry

just months before his passing provided the court with that certainty. After review,

we cannot say that the court clearly erred in determining that the will had not been

revoked. Therefore, we affirm.

Attorney’s fees

[¶12.]       Appellees Larry and Ronald petitioned for attorney’s fees under SDCL

29A-3-720, which provides that “[t]he court may also award necessary expenses and

disbursements, including reasonable attorney’s fees, to any person who prosecuted

or defended an action that resulted in a substantial benefit to the estate.”

(Emphasis added.) The court denied Appellees’ petition, finding that their actions

did not benefit the estate. It noted that Marcelina was the one that produced the

2001 copy of the will and that Appellees had not done anything that resulted in a


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substantial benefit to the Estate. By notice of review, Appellees contend that the

court erred by denying their petition.

[¶13.]       “Attorney’s fees are awarded at the discretion of the circuit court.”

Wagner v. Brownlee, 2006 S.D. 38, ¶ 17, 713 N.W.2d 592, 598. Therefore, we review

the court’s decision under the abuse of discretion standard. Appellees contend that

public policy dictates that an estate is benefited when genuine controversies as to

the validity of a will are litigated and finally determined. See In re Estate of Laue,

2010 S.D. 80, ¶ 43, 790 N.W.2d 765, 774. They assert that if proponents of proper

wills are burdened with costs of litigation, then those proponents will be

discouraged from coming forward. Although Appellees urge us to determine

whether the Estate received a benefit or not, their arguments fail to recognize that

attorney’s fees are discretionary in this case, not mandatory. Based on these facts,

the circuit court did not abuse its discretion in determining that the Appellees’

actions did not result in a substantial benefit to the Estate. We affirm.

[¶14.]       Pursuant to SDCL 15-26A-87.3, Appellees have petitioned this Court

for $4,506.25 appellate attorney’s fees. We deny their request.

[¶15.]       GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,

Justices, concur.




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