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If the original will cannot be located after a person dies, South Dakota law treats the situation carefully to balance two goals: honoring the testator’s true intentions and preventing fraud. Under the state’s probate rules (found in South Dakota Codified Laws, Title 29A), a missing original will creates a presumption that the decedent intended to revoke it if the will was last known to be in the testator’s possession and then cannot be found. That presumption can be overcome, however, if those who want the will admitted to probate present sufficient evidence that the will continued to exist and reflected the decedent’s final wishes.

Common legal outcomes and the usual process in South Dakota are:

• Presumption of revocation: If the decedent had the original will and it disappears after that, courts commonly presume the decedent destroyed the will with the intent to revoke. This presumption is rebuttable.
• Admitting a copy or secondary evidence: If the original is lost or destroyed but the contents are provable, South Dakota probate courts can admit a copy or other evidence of the will’s terms. Courts typically require credible proof of the will’s contents and proof that the loss was not due to the testator’s intent to revoke.
• Standard of proof: To admit a lost or destroyed will, courts generally require clear and convincing evidence of the will’s contents and that the decedent did not intend to revoke it. Evidence can include sworn testimony from witnesses, a reliable copy of the will, drafts, notes, or other corroborating documents and testimony that show the will existed and expressed testamentary intent.
• When someone else destroyed the will: If a third party destroyed the will after the testator’s death (or destroyed it by wrongful conduct), courts may refuse to apply the presumption of revocation and instead admit evidence of the will and may impose remedies against the wrongdoer. That can include awarding the intended beneficiaries their inheritance or imposing a constructive trust.
• Remedies and challenges: Interested parties may file a petition with the probate court to admit a lost will. Opposing parties can contest admission. If a court admits a copy or other evidence, it will normally specify the legal effect and may enter orders to protect estate assets while the dispute continues.

For statutory text and related provisions governing wills and probate in South Dakota, see South Dakota Codified Laws, Title 29A (Probate and Trust): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Title=29A. That collection includes rules on will execution, revocation, and the probate process that a court follows when a will is missing.

Typical evidence courts accept

• Testimony from people who witnessed execution or saw the original after execution.
• A properly certified copy of the will produced before death or a photocopy accompanied by reliable witness testimony.
• Drafts or related documents that match the declared terms.
• Correspondence, email, or other records showing the testator’s statements or instructions consistent with the will’s terms.
• Evidence showing that the will disappeared while in someone else’s control or that someone else had motive and opportunity to destroy it.

What to expect procedurally

1. File a petition with the probate court in the decedent’s county to admit the will or to open probate. The court will set a hearing.
2. Gather affidavits, witness testimony, and any copies or drafts of the will.
3. Attend a probate hearing where the court evaluates the evidence. The court decides whether to admit a copy or other evidence in place of the original.
4. If the will cannot be admitted, the estate may be distributed under prior valid wills (if any) or under intestacy rules.

Because South Dakota’s probate rules and evidentiary practices mirror uniform probate principles, you should expect courts to look for strong, corroborating proof before admitting a lost or destroyed will. For procedural requirements and forms, check the South Dakota Unified Judicial System: https://ujs.sd.gov/.

When to consider legal help

If you are an executor, beneficiary, or potential beneficiary dealing with a missing will, get prompt legal advice. A lawyer can help gather admissible evidence, prepare probate petitions, and protect estate assets while disputes proceed. If someone may have intentionally destroyed a will, counsel can advise about both probate remedies and possible civil claims against a wrongdoer.

Important disclaimer: This article is for general education only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed South Dakota attorney.

Helpful Hints

• Start an immediate, thorough search: check home safes, banks, lawyers’ files, and digital records.
• Look for copies: photocopies, PDFs, emails, or cloud backups can help prove contents.
• Identify and contact witnesses quickly, while memories are fresh, and ask them to provide written, sworn statements if possible.
• Preserve evidence: don’t alter or dispose of personal papers, devices, or storage where the will may have been kept.
• Document chain of custody: create a timeline showing who had the will and when it went missing.
• If you suspect foul play, note who had motive or access and report suspected criminal conduct to authorities while also discussing civil remedies with an attorney.
• File for probate without delay if assets require administration; you may ask the court to temporarily freeze distributions until the will dispute resolves.
• Consult a South Dakota probate lawyer early—probate rules and deadlines vary, and timely action preserves rights and options.