To “execute” a will simply means to make or write one. At some point in your life, it’s generally a good idea for you to execute a will specifying what should be done with your property, money, real estate, vehicles, and/or other assets after you’ve passed away. While executing your will with the help of an attorney is highly recommended, a will written without professional help can still be valid.
In South Dakota, a valid will:
- Must be in writing (except in very rare cases)
- Must be made by a testator (the deceased person) who is at least 18 years old and of sound mind
- Must be signed by the deceased and two witnesses (except in the case of a holographic will, which must be written, signed, and dated in the handwriting of the deceased)
After the testator’s death, the will should be submitted to the probate court. The court’s job, then, is to see that the instructions in the will are carried out, with outstanding bills or taxes paid and remaining assets distributed to beneficiaries (heirs and others receiving the assets of the deceased) as directed. The will might name a personal representative or trustee to handle these duties, or the court might appoint one.
Contesting an Improperly Executed Will
If you feel that a deceased loved one’s will was not properly executed, South Dakota law gives you the right to contest the will, which means to claim that it is invalid and that one or more of its provisions should not be carried out.
To contest a will successfully, you have to prove one or more of the following things to the court:
- The deceased person was not of sound mind when writing the will.
- The will was forged.
- The signatures of the deceased and/or witnesses are missing or invalid.
- Whoever drafted the will made legal or clerical errors.
- Somebody close to the deceased person unfairly influenced the writing of the will to get more benefits or deprive someone else of benefits.
- The deceased revoked the submitted will by making changes to it, replacing it with a more recent will, or destroying the original will.
To be of sound mind simply means to have the mental capacity to execute a will laying out what you’d like done with your assets when you die. Even a person with diagnosed mental disorders can be of sound mind when executing a will. The court generally assumes the deceased was of sound mind unless there is strong evidence to show this was not the case:
- The deceased suffered from organic brain dysfunction, dementia, aphasia, or depression.
- The deceased suffered from a mental disorder that interfered with decision making or communication skills.
- The interference was present for a reasonable period of time before, during, and after the writing of the will.
- Someone else had undue influence on the writing of the will.
- The deceased suffered from “insane delusions.”
A video recording of the deceased at the time the will was written can be helpful in proving the will was improperly executed, for any of the above reasons.
The Role of Your Attorney
When various heirs, beneficiaries, and their lawyers start arguing over the validity of a will, things can get very complicated and unpleasant. Families can suffer long-lasting discord. You are most likely to contest a will successfully and avoid stress by retaining an attorney who understands how to:
- Meet the burden of proof and show that a will is invalid
- Negotiate with beneficiaries and resolve disagreements
- Handle claims filed by the deceased person’s creditors
- Clarify ambiguities in the will
- Remove a personal representative if necessary
- Protect the estate until all issues are resolved
- Represent you in court if the case goes to trial
Do You Believe That a Loved One’s Will Was Improperly Executed?
With your burden of proof such a heavy one and going to trial likely, you need the services of an experienced wills and estates attorney to contest a will successfully. Contact us online or call us at 605-306-4100 to schedule a free consultation.