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SOUTH DAKOTA LEGAL INFORMATION
Last Will and Testament Statutes
Link to the South Dakota Probate Code.
Last Will information from the South Dakota Bar Association
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected South Dakota Statutes
- 29A-2-501. Who may make a will. An individual eighteen or more years of age who is of sound mind may make a will.
- 29A-2-502. Holographic will -- Validity of non-holographic will -- Establishing intent.
(a) A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
(b) A will not valid as a holographic will must be:
- In writing;
- Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
- Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator's acknowledgment of that signature.
(c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.
- 29A-2-503. Writings intended as wills, etc. Although a document or writing added upon a document was not executed in compliance with § 29A-2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will.
- 29A-2-504. Self-proved will.
(a) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:
I, ________________, the testator, sign my name to this instrument this ______ day of ____________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Testator
We, ________________, ________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Witness
______________________________
Witness
The State of __________________
County of ________________________
Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.
(Seal)
(Signed) ____________________________
____________________________
(Official capacity of officer)
- 29A-2-505. Who may witness.
(a) An individual generally competent to be a witness may act as a witness to a will.
(b) The signing of a will by an interested witness does not invalidate the will or any provision of it.
- 29A-2-507. Revocation by writing or by act.
(a) A will or any part thereof is revoked:
- By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
- By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the revocatory act touched any of the words on the will.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
- 29A-2-508. Revocation by change of circumstances. Except as provided in § § 29A-2-803 and 29A-2-804, a change of circumstances does not revoke a will or any part of it.
- 29A-2-510. Incorporation by reference. A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
- 29A-2-513. Separate writing identifying devise of certain types of tangible personal property. Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
- 29A-2-515. Deposit of will with court in testator's lifetime. A will may be deposited by the testator or the testator's agent with any court for safekeeping. The will must be sealed and kept confidential. During the testator's lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to that person on request; or the court may deliver the will to the appropriate court.
- 29A-2-802. Effect of divorce, annulment, and decree of separation. An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
Library of Informational Legal Articles
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