A will is a legal document that explains how a person wants their money, property, vehicles, and other assets distributed once they’ve passed away. If a person should die intestate (without a will), the court will apply state law to divide their property up among their heirs and/or creditors—determining to whom and in what amounts their assets will be distributed, regardless of any verbal instructions they might have given before they died.
In South Dakota, a valid will:
- Must be in writing (except in very rare cases).
- Must be made by a testator at least 18 years old and of sound mind.
- Must be signed by the testator and two witnesses (except in the case of a holographic will).
When a will is challenged in court, it is often on the basis that the person who created it was not of sound mind.
What Is Sound Mind?
Sound mind is another term for testamentary capacity. The bar for proving testamentary capacity is fairly low. This means the court generally assumes the testator (the person who created the will) was of sound mind unless someone contesting the will shows strong evidence to the contrary.
The testator need not have the intellectual capacity of someone in perfect physical and/or mental health. Even a person with diagnosed mental disorders or one who might have had a guardian or conservator appointed to handle business and other affairs can still be deemed by the court to have had testamentary capacity during the writing of a will.
Proving a Lack of Testamentary Capacity
The bar for proving a lack of testamentary capacity is high. An heir who wants to challenge the validity of a will on the basis of their loved one’s mental state must show clear and convincing evidence of incapacity. Some examples of such evidence are:
- The individual suffered from a diagnosed disorder such as organic brain dysfunction, dementia, aphasia, or depression.
- The signs and symptoms of such a mental disorder clearly interfered with the person’s decision-making or communication skills.
- The interference occurred not just for a moment in time but for a reasonable period of time before, during, and after the writing of the will.
- The individual’s disorders resulted in someone else’s undue influence on the writing of the will—destroying the free agency of the testator and substituting the will of the other party.
- The testator suffered an insane delusion, which is insanity in relation to a single subject, like the identity or behavior of the objects of the testator’s bounty (heirs).
A video recording showing your loved one at the time the will was written can be helpful in proving incapacity for any or all of the above reasons.
Statute of Limitations for Contesting a Will
South Dakota’s statute of limitations for probate litigation ranges from three to 20 years from the testator’s death, depending on the aspect of the will being contested. If a will isn’t found immediately after the individual’s death, it may be filed in probate court when it is found, and the statute runs from that date. If a more recent or overriding copy of a will is found after the first will is filed, the filing date for the new will takes precedence over that of the original will, and the statute runs from the new date.
An heir who was a minor when the will was filed may contest the will at any time up to two years after reaching majority.
Do You Believe That Your Loved One Was Not of Sound Mind at the Writing of a Will?
With the bar for proving testamentary incapacity so high, you need the services of an experienced wills and estates attorney to contest the will successfully. Contact us online or call us at 605-644-5003 to schedule a free consultation. We also encourage you to request a copy of attorney Jeff Cole’s free guide, True Intent: South Dakota Will Contests, to learn more about the estate litigation process.