## Facts

- John May executed a holographic will in 1967.
- May told his nephew-in-law, Victor Brandt, about the will on at least two occasions, including about three days before May’s death.
- After May died, the will was found as a single sheet cut from a notebook, torn so that part of the sheet (and any writing on it) was missing.
- Eva Brandt, May’s niece and an heir under intestacy, was not named as a beneficiary in the holographic will.
- The probate court treated the torn condition of the document as revocation and denied probate of the will.
- The will’s proponent appealed.

## Issues

1. Whether a holographic will’s torn or mutilated condition, without additional proof, establishes revocation by physical act.
2. Whether evidence that the testator recently acknowledged the will rebuts any inference or presumption that the testator tore the will with intent to revoke.
3. What showing is required to prove revocation by physical act under South Dakota law.

## Decision

- The South Dakota Supreme Court reversed the probate court’s finding of revocation.
- The court concluded that the will’s mutilated condition, standing alone, did not prove revocation because revocation by physical act requires intent.
- The matter was returned for further proceedings consistent with treating the will as not revoked on the existing record.

## Legal Principles

- Revocation by physical act requires both (a) a qualifying physical act (such as tearing) and (b) a concurrent intent to revoke.
- A will’s damaged or incomplete condition may support an inference of revocation, but the inference is rebuttable and cannot substitute for proof of intent.
- Recent statements by the testator acknowledging the will as operative are evidence against revocatory intent and may defeat a revocation claim based only on physical condition.
- Courts favor giving effect to testamentary intent when the record does not show a deliberate revocation.

## Conclusion

A torn holographic will is not revoked merely because it is found mutilated; without proof that the testator performed the act with intent to revoke, the will should not be denied probate on physical condition alone, especially where the testator recently affirmed the will’s existence.


Estate of May, 220 N.W.2d 388 (S.D. 1974)