Detailed Answer — How South Dakota courts handle a lost or damaged original will

If the original will is lost or damaged while being mailed to a South Dakota court, the issue the court must resolve is twofold: (1) whether the document that cannot be produced was in fact a valid will when it left the testator’s possession, and (2) whether the loss or damage shows that the testator intentionally revoked the will. South Dakota probate courts focus on the testator’s intent and on whether there is sufficient admissible evidence to establish the contents and due execution of the lost or damaged will.

Common outcomes and procedures you should expect:

• Admitting a copy or proving the will in court: If the original cannot be produced because it was lost or destroyed during mailing, the court may admit a copy (for example, a photocopy or digital scan) if the petitioner proves by clear and convincing evidence that the copy correctly reflects the testator’s validly executed will and that the original was not revoked. Evidence commonly used includes witness affidavits (attesting that they saw the testator sign the original), testimony from the attesting witnesses, previously filed or recorded drafts, and contemporaneous communications confirming the will’s contents.
• Presumption of revocation by physical act: If the original will was intentionally destroyed or substantially mutilated by the testator (for example, torn up or burned by the testator), most probate rules create a presumption that the testator revoked the will. If the will was lost in the mail and there is no evidence the testator intended revocation, that presumption does not apply. You will need to show the loss or damage happened after execution and without intent to revoke.
• Burden of proof: The burden falls on the person seeking probate to prove the will’s existence, authenticity, and that it was not revoked. In practice that means filing a petition to admit the will (or a copy) and presenting affidavits, witness testimony, and other corroborating evidence. If attesting witnesses are available, their affidavits are especially important.
• If the will is damaged but legible: If the mailed original arrives damaged but still readable and includes required signatures, the clerk/court may accept the damaged original for probate. The court will examine whether the signature and attestation are intact and whether the damage indicates an intent to revoke.
• If you cannot prove the will: If you cannot produce convincing evidence that a valid will existed and was not revoked, the estate may be settled under intestacy rules (South Dakota law distributing assets to heirs as if there were no valid will).

Practical documents and evidence that help establish a lost/damaged will case:

• An unambiguous copy (photocopy or scan) of the original will.
• Affidavits from the attesting witnesses that the will was properly executed and that they observed the testator sign it.
• Affidavits or testimony from the person who mailed the will describing the mailing, tracking information, and when it was last in the testator’s possession.
• Proof of mailing (tracking numbers, postage receipts) and any communications showing the testator intended to file the will.
• Contemporaneous emails, notes, or drafts showing the will’s terms.

Where to look in South Dakota law and court resources:

• South Dakota statutes addressing probate and wills are found in the South Dakota Codified Laws (probate provisions are under the State’s probate title). For statutory text and searches, start at the South Dakota Legislature website: https://sdlegislature.gov/
• South Dakota Unified Judicial System (courts) provides probate court contacts and local procedures at https://ujs.sd.gov/ — contact the clerk in the county where the deceased lived for local filing requirements and forms.
• If mail or carrier handling is involved, you may also consider a claim with the U.S. Postal Service (if mailed by USPS): https://www.usps.com/help/claims.htm

Timing and next steps:

1. Preserve any copy of the will and all mailing evidence (receipts, tracking numbers, email confirmations).
2. Contact the attesting witnesses promptly and ask them to prepare sworn affidavits about the will’s execution and whether the testator intended any revocation.
3. Contact the county probate court clerk where the decedent resided and explain the situation. Ask what form of petition or motion the court prefers for admitting a copy or proving a lost/destroyed will.
4. Consult a South Dakota probate attorney. An attorney can prepare the petition, collect affidavits, and present the proof necessary to persuade the court to admit a copy or to allow proof of the lost/damaged original.

Helpful Hints — Practical steps if a will is lost or damaged in the mail

• Act quickly: witnesses’ memories fade. Get sworn affidavits from attesting witnesses as soon as possible.
• Gather all mailing evidence: tracking info, postage receipts, date and method of delivery, and any postal claims filed.
• Keep and back up any copies or scans of the original will. A clear pre-existing copy greatly improves the chance the court will accept it.
• Notify potential beneficiaries and heirs so they can be served with the probate petition and have a chance to object if appropriate.
• Check whether the testator left multiple originals. If a second original exists, present it to the court immediately.
• Don’t assume mailing loss equals revocation. South Dakota courts look to the testator’s intent; accidental loss in transit does not automatically revoke a will.
• Consult an attorney before filing. The admissibility of a copy and the required proof can be technical; an attorney can help assemble persuasive evidence and follow local rules.