Locations in Sioux Falls & Mitchell

Can I fight a will or trust?

Alvine Weidenaar, Litigation, Trust and Estate Disputes

An invalid Will or Trust can be contested in South Dakota. After a loved one dies and you find out you have been disinherited through that decedent’s Will or Trust, and you believe the decedent lacked capacity or was unduly influenced to sign the documents disinheriting you, you may have a right to contest that Will or Trust in court. To execute a valid Will in South Dakota, the testator must have testamentary capacity and a settlor or grantor (the creator of the trust) must have mental capacity to execute a Trust or amendment to a Trust. Being disinherited by a parent, spouse, friend or loved one can be very emotional. If you are interested in an estate or trust and you are disinherited to any degree, you can contest the Will or Trust in a South Dakota Court, which is a lawsuit that can be complex and the timing of filing such contests matters. You must learn and understand your legal options by seeking the help of an experienced estate and trust litigation attorney.

What Is Will or Trust Litigation?

Contesting a Will or Trust requires a valid legal basis, which can be any one or more of the following:

  • The Will was not executed with the formalities and solemnities to make a valid Will in South Dakota.
  • The testator lacked the testamentary capacity to sign the Will at the time it was signed.
  • The settlor or grantor lacked the mental capacity to sign the Trust at the time it was signed.
  • The testator was unduly influenced to execute a Will or Trust or Trust amendment that he or she would not have otherwise signed but for that undue influence. 
  • The Will or Trust was the result of fraud.
  • The Will or Trust was forged or altered.

To contest a Will or Trust, you must file a petition in a South Dakota court. Your attorneys’ at Alvine Law, LLP will seek discovery to find out more about the will or trust preparation process, appear for you and represent you in court and, if no resolution is reached, represent you in trial, whether it is before the Court or a jury.

How Do I Know If I Can Contest a Will or Trust in South Dakota?

To contest a will or trust in South Dakota, you must have “standing,” which requires that you have an interest in the Estate or Trust. According to South Dakota statute (SDCL 29A-1-201(23) provides a definition of “interested person” as follows:

Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, minor, or protected person. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

To enter your appearance, challenge any document or to be heard on any matter or in any proceeding or trial, a party must be an interested person, as follows (written above/summarized below):

  • Heir, devisee or beneficiary;
  • A spouse or child/children;
  • A creditor of the estate; and
  • Anyone else that has a property right in an Estate.

The standing and what level of interest you have must be deciphered by an experienced estate attorney in South Dakota. We, at Alvine Law, LLP, can help you determine if you have the requisite standing to contest the Will in South Dakota and evaluate the strength of your claim.

What Are the Steps to Contest a Will or Trust in South Dakota?

The steps to contest a will or trust in South Dakota will depend on the specific circumstances of your case and the grounds for contesting the will or trust. In general, the process may involve the following steps:

  1. Consult an Estate Attorney. An experienced attorney can help you understand your legal options and the process for contesting a will or trust in South Dakota.
  2. File a Petition/Lawsuit with the Court. To start the litigation process, you will need to file a petition with the court outlining the grounds for contesting the will or trust and requesting that the court hear your case.
  3. Serve Required Notice. Serve the petition on the appropriate parties. You will need to serve the petition on the personal representative of the estate (if there is one) and any other interested parties, such as beneficiaries or heirs.
  4. Seek & Pursue Discovery. During the discovery process, both sides will gather and exchange information and evidence relevant to the case. This may involve depositions, interrogatories, and requests for production of documents.
  5. Participate in the Process & Mediation. A party/contestant must appear at your deposition, the mediation (required by the Court) and at trial by court or jury (mandatory). The party/contestant may and is welcome to attend anything and everything that happens in the case, i.e., other depositions, court hearings, any other matter involving his or her interest, but the party is not required to attend (optional). The party/contestant must be prepared to attend other court hearings and proceedings, if required or as needed.
  6. Trial. If the contest cannot be resolved by settlement, then the case will proceed to trial and decided by the trier-of-fact (the court or a jury) to resolve the dispute between the parties. 
  7. Appeal the Decision. If the case does not settle and goes to trial, then depending on the result and either side was unhappy with the result due to error, no evidence or lack of evidence, the case could then be appealed to the South Dakota Supreme Court 

It is important to note that will or trust litigation can be a long and complex process, and the outcome is not guaranteed. In South Dakota, contesting a will or trust requires the assistance of an experienced estate attorney who can explain your rights, possible outcomes, and the likelihood of success in court.

What Are the Potential Outcomes of Will or Trust Litigation in South Dakota?

The potential outcomes of will or trust litigation in South Dakota will depend on the specific circumstances of your case and the strength of your legal arguments. Some possible outcomes may include:

  • The trier-of-fact will decide whether there was a lack of (testamentary or mental) capacity or whether the Will or Trust was the result of undue influence, fraud, forgery or lack of formalities and solemnities.
    • If the trier-of-fact finds a lack of capacity, undue influence or fraud or forgery, then the Will or Trust will be declared invalid and void as if it never existed, and will be set aside. 
    • If the trier-of-fact finds the opposite (that the testator had capacity or was not unduly influenced or both), then the contest will fail and the document – Will or Trust – will stand.
  • The will or trust is invalidated. If the court determines that the will or trust is not valid, it may be invalidated or set aside. This could result in the distribution of the estate’s assets being governed by state intestacy laws or a prior will.
  • If a Will is not contested or is contested, but determined valid, then there may be a claim for construction. A construction case presents a dispute or ambiguity in the interpretation of the Will or Trust requesting the South Dakota court declare  what the testator or settlor/grantor meant or intended by the language used in the document.

To determine your rights, options and goals, you must confer with experienced South Dakota attorneys that can weigh your interest, evidence and best course of action to help you decide the best action for you to take, legally.


 have a trustee that refuses to comply with his/her/its duties, If you are an interested person in an Estate or Trust in South Dakota, have been disinherited and believe that a Will or Trust is invalid for lack of capacity or undue influence, fraud or forgery, the timing of filing your contest or claims matter, so contact us as quickly as possible for a free consultation. We, at Alvine Law Firm, LLP would be honored to talk to you about your situation. We will listen to your concerns, review the facts of your case, and provide you with an honest assessment of your legal options.

The team of attorneys at Alvine Law Firm, LLP focus their practice on personal injury, workers’ compensation, and criminal defense and Will Contests and Trusts Fights in South Dakota.. With offices in Sioux Falls and Mitchell, we are committed to serving clients and citizens throughout the state. Our team in offices in Sioux Falls and Mitchell has a deep understanding of South Dakota law and a proven track record of success, and we are committed to serving clients and citizens through the state.

Get the help you need today!

Our legal team’s expertise allows us to quickly evaluate your claim to allow you to get back to living your life.