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  1. #1
    Join Date
    Oct 2014
    Posts
    2

    Default Disputing a Will Based on a Subsequent Will that Cannot be Located

    My question involves estate proceedings in the state of: South Dakota.

    My father passed away five weeks ago. I am his only biological child. His wife, my stepmother, died prior to him seven years ago. They had a joint Will created in 1997, and when she passed the Will was enacted. That Will largely favored her children and barely recognized me (as she forced my dad to choose between us). Since that time, my dad supposedly had a new Will created in 2011, however following his death the Will has mysteriously disappeared, and the only Will that can be found is the one from 1997. My step-siblings have essentially taken over my father's house and are dictating how things should be doled out and separated. Despite an executor having been named (their aunt) they are removing documents and making plans to sell my dad's house and possessions without my consent. Since I live out of state, my dad's brother and aunt have been trying to get information but have been largely kept in the dark about what's happening. Do I have any standing in this situation? I am concerned that they are hiding information and attempting to divert assets that are needed to pay off outstanding bills. My side of the family is very concerned that something unethical is taking place but without access to the information we don't know if there's any legal option to freeze everything and have an external probate representative take over. The estate will not amount to much, if anything, when all is said and done. Do we have any options?

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: One Bio Child Versus Step Kids and a Missing Will

    depending on how the joint will was constructed, he may not have been able to make a new will, or at least make one that was enforceable. You need to take the existing will to an attorney who can review the will to determine if it was written such that it cannot be altered or not.

    If it could not be altered, then it is still in force.

    but actually, unless there is a newer will presented to probate, it really doesn't matter as the existing will will be the one that is accepted.

    How do you know a new will was made? I see you wrote "supposedly" which often means; they talked about doing it but never did.

  3. #3
    Join Date
    Oct 2014
    Posts
    2

    Default Re: One Bio Child Versus Step Kids and a Missing Will

    He actually told a minimum of two to three people that he had made a new will, however it could not be found in the house. There are some circumstances surrounding who was in the house and what they were doing while the paramedics were trying to revive him that lead to speculation that they actually disposed of the new will as it would not favor them.

    Why wouldn't he have been able to make a new will after my step-mother passed? Her assets at the time were distributed to her children as directed by the Will at that time. The house was left to him and he actually refinanced it after her death to pay off her medical bills. Any other assets would have been solely his (retirement, 401k, etc) as they did not own any other physical property together.

  4. #4
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: One Bio Child Versus Step Kids and a Missing Will

    jennisess;844061]He actually told a minimum of two to three people that he had made a new will, however it could not be found in the house. There are some circumstances surrounding who was in the house and what they were doing while the paramedics were trying to revive him that lead to speculation that they actually disposed of the new will as it would not favor them.
    the only other thing that I think might be successful is if you can find out what attorney he may have used to write the new will, they may have a copy.

    Why wouldn't he have been able to make a new will after my step-mother passed?
    depending on how a joint will is written, it can become an irrevocable contract between your father and his wife. That is why the will would need to be read by an attorney familiar with the specifics of the law.

  5. #5
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: One Bio Child Versus Step Kids and a Missing Will

    South Dakota has some interesting probate laws.

    http://legis.sd.gov/Statutes/Codifie...3&Type=Statute

    Like a decedent's estate can be both testate and intestate at the same time. If OP is the only biological son of the deceased, with no surviving spouse, he is first in line for succession.

    29A-3-411. Formal testacy proceedings--Partial intestacy. If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.

    Source: SL 1994, ch 232, § 3-411.
    And from reading some of the South Dakota case law, two or three witness testifying to the possible existence of a second will could be enough to place the entire matter before the court, if they knew what the decedent's intentions were.

    JK give good advise here in that the joint will has to be reviewed by an attorney to see if it represents a trust or contract on the descendent. But there is nothing I can find that says if the father executed a subsequent will it would not supersede the joint will.

    OP or his relatives can go to the county probate court and get the file to see if this is a formal or informal probate and what is really going on.

    The estate will not amount to much, if anything, when all is said and done
    Is it really worth the effort or expense?

    Now I have a question for those smarter than I. How does this work when there is a joint will? The first spouse dies and the original will is given to the Probate Court. What do they give the Probate Court when the survivor dies? Is it a 'second' original of the same will?

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