## Facts

- Anna K. Heibult had four children. Three moved to California; her youngest, Ronald Heibult, remained in South Dakota and helped his parents operate the family farm.
- After Anna’s husband died, Anna met with her longtime South Dakota attorney, John E. Burke, to prepare a will (the “1990 will”).
- The 1990 will gave Ronald a larger share of certain farm property (including significant interests in the “home place”) while dividing other property and the remainder of the estate among all four children.
- Burke retained the original, executed 1990 will in his office.
- In 1991, while visiting her three older children in California, Anna was taken by one daughter and a family friend to a California attorney, and Anna executed a second estate plan that divided her property equally among the four children.
- The California attorney prepared both a new will (the “1991 will”) and a trust intended to hold Anna’s assets for distribution at her death.
- After returning to South Dakota, Anna staged conduct that made it appear she was implementing the California plan: she pretended to place the 1991 will in her safe-deposit box and pretended to transfer assets into the trust.
- Anna then held a “celebration” in which she claimed to burn her original will, but instead she burned the 1991 will.
- Later, Anna met with Burke, told him about the 1991 will and her deception, and asked whether she needed to do anything further to keep the 1990 will effective. Burke told her that because he still had the original 1990 will, burning the 1991 will was sufficient.
- After Anna died (February 2000), Ronald petitioned to probate the 1990 will. The 1991 will could not be found.
- The three older children petitioned for intestate administration, arguing that the 1990 will had been revoked by the later 1991 will and that no operative will remained.
- The trial court admitted the 1990 will to probate. The three older children appealed.

## Issues

1. Whether Anna’s execution of the 1991 California will revoked the 1990 South Dakota will, and if so, whether the 1990 will could later become effective again after Anna destroyed the 1991 will.
2. Whether the evidence of Anna’s acts and statements (including her post-burning discussion with her attorney) showed intent for the 1990 will to control her estate at death rather than intestacy.
3. Whether the drafting attorney’s testimony about Anna’s communications was admissible to prove her intent concerning revocation and the operative will.

## Decision

- The South Dakota Supreme Court affirmed the judgment admitting the 1990 will to probate.
- The court concluded that the evidence supported the trial court’s finding that Anna intentionally destroyed the 1991 will and intended the 1990 will to govern her estate.
- The court allowed consideration of Burke’s testimony about Anna’s statements and instructions to determine her testamentary intent.

## Legal Principles

- A will may be revoked by a later will or by a revocatory act (such as burning) performed with intent to revoke.
- When a later will has revoked an earlier will and the later will is itself revoked, the earlier will does not automatically become effective again; the testator’s intent and applicable revival rules control whether the prior will operates at death.
- A missing will can raise a revocation inference in some settings, but that inference may be overcome by evidence showing what happened to the instrument and what the testator intended.
- In disputes about which will controls, evidence of the testator’s statements and surrounding circumstances may be used to determine intent, including testimony from the attorney who drafted or kept custody of the earlier will, subject to applicable privilege rules and probate exceptions.

## Conclusion

The South Dakota Supreme Court held that Anna Heibult’s estate should be distributed under her 1990 will because the record supported findings that she deliberately burned the later 1991 California will and intended the earlier 1990 plan—kept in original form by her South Dakota attorney—to be her operative will at death, defeating her other children’s request for intestate distribution.


In re Estate of Heibult, 653 N.W.2d 101 (2002)