Detailed Answer
When a deceased person’s written testament does not meet South Dakota’s formal signing and witnessing requirements, the probate court may refuse to admit that document as the decedent’s valid will. In practical terms, that means the document will not control how the estate is distributed, and the estate will likely be administered under South Dakota’s intestacy rules unless the court admits the document under an exception.
What the law requires. South Dakota law sets out the formalities for a valid will (writing, the testator’s signature, and the required number of witnesses). These rules are contained in the South Dakota Codified Laws governing wills and probate (see South Dakota Codified Laws, Chapter 29A-2: Wills and Codicils: sdlegislature.gov – Chapter 29A-2). If a document lacks the required signature or witnessing, a probate judge may find it invalid.
Consequences if the will is treated as invalid.
- Intestate distribution. If the will is invalidated in whole (or as to particular provisions), the estate will be distributed according to South Dakota’s intestacy statutes. That typically means close family members—spouse, children, parents, and other relatives—receive the estate under statutory priority rather than under the decedent’s intended plan.
- Appointment of a personal representative. The court will appoint a personal representative (executor or administrator). If no valid will names an executor, the court follows statutory priority in appointing an administrator to manage the estate, collect assets, pay debts, and distribute property under intestacy rules.
- Creditor claims and administration. The estate still goes through probate administration: notice to creditors, payment of debts and taxes, and distribution of remaining assets according to intestacy law.
- Increased litigation risk. Parties who expected to benefit under the unsigned or improperly executed document may contest the court’s ruling, or competing heirs may litigate over distribution and administration. That can increase costs and delay distribution.
Possible ways to overcome improper execution. The court in some cases can admit a defective document if there is clear and convincing evidence the decedent intended the document to serve as the will. Many states—including South Dakota—have mechanisms that allow probate courts to excuse technical defects where the decedent’s testamentary intent is proved. To pursue that option, interested parties generally must petition the probate court and supply strong evidence (the decedent’s statements, contemporaneous drafts, witness testimony, or other corroborating material) showing the decedent intended the writing to be a will.
If the document is a handwritten (holographic) instrument, or if there are documents or witnesses showing the decedent intended the writing as a will despite defective formalities, bring that evidence to the probate court. Where the court admits the document under a harmless-error or equivalent doctrine, the instrument will be treated as the decedent’s will for distribution purposes (see the South Dakota statutes on wills: sdlegislature.gov – Chapter 29A-2).
If a will is partially invalid. Sometimes only a clause or signature block fails formal requirements, while other parts of the document are valid. In that situation, the court may admit the valid portions and treat invalid parts as if revoked, which can yield a more complex mix of testamentary gifts and intestate distribution for the remainder.
Practical steps to take. If you are involved in a probate where a will may be invalid for lack of proper signature or witness formalities:
- Preserve the original document. Do not alter it or allow it to be destroyed.
- Gather evidence of the decedent’s intent. Collect drafts, notes, communications, emails, and witness statements that show the decedent intended the document to operate as a will.
- Seek legal guidance quickly. Probate timelines and notice requirements can be strict. A probate attorney can file the proper petition to admit the document (or to open administration under intestacy) and can evaluate options for curing formal defects.
Where the estate goes if no valid will exists. If no will is admitted, the estate passes by intestacy. South Dakota’s intestacy laws determine which relatives inherit and in what shares. For details on intestate succession and probate process materials, see the South Dakota Legislature site and the South Dakota Unified Judicial System for general probate guidance: sdlegislature.gov – Codified Laws and ujs.sd.gov – South Dakota Unified Judicial System.
Bottom line. A will that was not properly signed or witnessed can be rejected by the probate court, which usually leads to administration under intestacy. However, South Dakota law permits the court to consider evidence of the decedent’s testamentary intent and, in appropriate circumstances, admit an otherwise-defective document. The outcome depends on the facts, the available evidence, and the probate court’s judgment.
Disclaimer: This article is for educational purposes only and is not legal advice. For help with a specific probate issue in South Dakota, consult a licensed probate attorney.
Helpful Hints
- Keep the original will safe and unaltered. Originals carry the most weight in probate.
- Collect contemporaneous evidence of intent: drafts, emails, text messages, and notes can help prove the decedent’s wishes.
- Locate and contact any witnesses promptly. Witness testimony about the signing and the decedent’s state of mind may be crucial.
- Ask whether the document might qualify as a holographic will under South Dakota law; if handwritten and signed by the decedent, different rules may apply.
- File necessary probate paperwork quickly. Statutory notice and claims deadlines can bar rights if missed.
- If costs and family conflict are concerns, consider alternative dispute resolution (mediation) to settle challenges outside of lengthy litigation.
- Consult a South Dakota probate attorney early to evaluate whether the court may excuse formal defects or whether administration under intestacy is necessary.