Mutual Wills Package with Last Wills and Testaments for Married Couple with Minor Children
Note: This summary is not intended to be an
all-inclusive discussion of the law of wills in South Dakota, but does
contain basic and other provisions. A discussion of handwritten
wills is not included.
Who may make a will: An individual eighteen
or more years of age who is of sound mind may make a will. 29A-2-501.
Execution: A will must be:
(1) In writing;
(2) Signed by the testator; and
(3) 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.
Writings intended as wills, etc: Although
a document or writing added upon a document was not executed in compliance
with law, 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-2-503.
Who may witness: An individual generally
competent to be a witness may act as a witness to a will.
The signing of a will by an interested witness does not invalidate the
will or any provision of it. 29A-2-505.
Self-Proved: A will may be made self proved
by the Utah self proving affidavit. The form you have found contains
the affidavit.
Choice of law as to execution: A written
will is valid if executed in compliance with South Dakota law, or if its
execution complies with the law at the time of execution of the jurisdiction
where the will is executed, or ofthe law of the jurisdiction where at the
time of execution or at the time of death the testator is domiciled, has
a place of abode, or is a national. 29A-2-506.
Revocation by will: A will or any part
thereof is revoked:
(1) By executing a subsequent will that
revokes the previous will or part expressly or by inconsistency; or
(2) 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. 29A-2-507.
Incorporation by reference: A writing in existence
when a will is executed may be incorporated by reference ifthe language
of the will manifests this intent and describes the writing sufficiently
to permit its identification. 29A-2-510.
Separate writing identifying devise of certain types of tangible
personal property: 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-2-513.
Contracts concerning succession: A contract
to make a will or devise, or not to revoke a will or devise, or todie intestate,
if executed on or after July 1, 1995, may be established only by (i) provisions
of a will stating material provisions of
the contract, (ii) an express reference in a will to a contract
and extrinsic evidence proving the terms of the contract, or (iii) a writing
signed by the decedent evidencing the contract. The execution of a joint
will or mutual wills does not create a presumption of a contract
not to revoke the will or wills. 29A-2-514.
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-2-515.
Duty of custodian of will -- Liability: After
the death of a testator and on request of an interested person, aperson
having custody of a will of the testator shall deliver it with reasonable
promptness to an appropriate court or to a person able to secure its probate.
A person who willfully fails to deliver a will is liable to any person
aggrieved for any damages that may be sustained by the failure. 29A-2-516.
Penalty clause for contest: A provision
in a will purporting to penalize an interested person for contesting the will
or instituting other proceedings relating to the estate is unenforceable
if probable cause exists for instituting proceedings. 29A-2-517.
