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South Dakota Will Contest
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South Dakota Will Contest

A South Dakota will contest is a formal testacy proceeding in circuit court. SDCL 29A-3-407 names the grounds and 29A-3-108 sets the deadline.

By Settled Editorial

A South Dakota will contest is a formal testacy proceeding, which SDCL 29A-3-401 defines as a proceeding conducted before the court to establish a will or determine intestacy. An interested person starts it by petition in the circuit court, SDCL 29A-3-407 names the grounds, and SDCL 29A-3-108 sets the deadline.

Three South Dakota facts shape everything below. The grounds sit in the statute itself, because 29A-3-407 lists them while it assigns the burden of proof. A party who asks for a jury in a formal testacy proceeding gets one under SDCL 29A-1-306. And an informal probate opens before the clerk with notice to almost no one, so the 12-month contest window can start running before an heir sees the will.

This page describes the mechanism. It is general information about South Dakota law and says nothing about whether a challenge fits any family's facts. The bar is high: the contestant carries the burden of proof on every ground except due execution, and the deadlines below are strict. Whether a particular will can be challenged is a question for a licensed South Dakota attorney, and an early conversation leaves more room. Every section cited here was read in the Legislature's compiled code on September 27, 2026.

What a South Dakota Will Contest Is

South Dakota runs two kinds of probate. SDCL 29A-1-201(22) defines informal proceedings as those conducted without notice to interested persons by the clerk of court, and 29A-1-201(18) defines formal proceedings as those conducted before a judge with notice to interested persons. A contest always lands on the formal side. Formal versus informal probate covers how each one opens.

Under SDCL 29A-3-401(a), an interested person files a petition asking the court, after notice and hearing, for one of four orders:

  • an order probating a will
  • an order setting aside an informal probate of a will
  • an order preventing informal probate of a will that is the subject of a pending application
  • an order that the decedent died intestate

A petition may seek formal probate of a will whether or not the same or a conflicting will has already been informally probated, and it need not ask for a personal representative at all. That matters when the fight is about the document rather than about who runs the estate.

Filing changes the estate right away. Section 29A-3-401 does the work in two subsections:

  • The clerk stops. Under 29A-3-401(c), while a formal testacy proceeding is pending, the clerk shall not act on any application for informal probate of any will of the decedent or for informal appointment of a personal representative.
  • Distribution stops. Under 29A-3-401(d), a personal representative appointed earlier must refrain from making any further distribution once notice of the formal proceeding arrives, unless the petition also asks the court to confirm that earlier appointment. A petitioner who wants a different representative may ask the court to restrain the sitting one and appoint a special administrator under SDCL 29A-3-614. Without that request, or if the court denies it, the sitting representative keeps every other power and duty described in South Dakota executor duties.

A contest is the wrong tool for a complaint about how the estate is being run. SDCL 29A-3-502 lets any interested person ask for supervised administration at any time, and the request can ride along with a testacy petition. When testacy has not been decided yet, 29A-3-502(a) requires the court to decide it anyway, even if it denies supervision.

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Who Can File

Only an "interested person" can start a formal testacy proceeding. SDCL 29A-1-201(23) says the term includes heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against the estate, plus persons having priority for appointment as personal representative. The same subdivision adds that the meaning "may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding."

So standing depends on the relief sought. An heir who would inherit more if the will fell has an interest in a petition to set it aside. A creditor usually has no stake in which will controls, because the debt is owed either way.

The Deadline to Contest a South Dakota Will

South Dakota runs two clocks, and the second one is why a family that just learned about an informal probate may still be inside the window.

SituationDeadlineStatute
Opening any informal probate or formal testacy proceedingNot more than 3 years after the death29A-3-108
Contesting a will that was informally probatedThe later of 12 months from the informal probate or 3 years from the death29A-3-108(3)
Earlier proceeding dismissed over doubt about the fact of deathAny time after, on a finding that the death came first and the petitioner did not delay unduly29A-3-108(1)
Estate of an absentee with a conservatorWithin 3 years after the conservator can establish the death29A-3-108(2)
No proceedings of any kind within the 3 yearsA formal testacy proceeding may still be commenced, but the personal representative gets only limited powers and only administration expenses may be claimed29A-3-108(4)
Construing a probated will, or determining the heirs of an intestateThe three-year limit does not apply29A-3-108

Read the second row twice. Because the period runs to whichever date falls later, an informal probate opened near the three-year mark still carries a full 12 months of contest exposure. The fifth row is narrower than it looks: it exists to confirm title in the rightful successors after a long silence, and 29A-3-108(5) adds a separate route for using a will that controls property passing from someone other than the decedent. The South Dakota probate timeline places these dates next to the ordinary schedule.

Why the 12-month clock can start before the family hears

SDCL 29A-3-306(a) says the person applying for informal probate must give notice of the application to two groups only: anyone who filed a demand for notice under SDCL 29A-3-204, and any personal representative whose appointment has not been terminated. The subsection closes with "No other notice of informal probate is required."

The family hears afterward, on a short fuse. Under 29A-3-306(b), once the clerk issues a statement of informal probate and no personal representative has been appointed who owes the notice, the applicant must within fourteen days send the heirs and devisees written information about the probate with a copy of the will. SDCL 29A-3-705(a) puts the same fourteen-day duty on every newly appointed personal representative other than a special administrator. Both sections say a failure to send the information is a breach of duty that does not affect the validity of the probate or the appointment. So the 12-month window may already be running when the letter arrives, or if it never arrives.

South Dakota law provides a tool aimed at that gap, the demand for notice. SDCL 29A-3-204 lets any interested person file one with the court at any time after the death, stating the decedent's name, the nature of the interest and a mailing address. After it is on file, no order or filing it covers may be made or accepted without notice to the person who filed it.

A separate clock for fraud in the proceeding

SDCL 29A-1-106 gives anyone injured by fraud in a probate proceeding, or in a statement filed under the probate code, a claim against the person who committed it. That claim must be brought within two years after the fraud is discovered, and never more than five years after the fraud against someone who did not commit it. The section says it does not limit remedies for fraud practiced on the decedent during life that affects the succession. That kind of fraud is a ground for contesting the will itself under 29A-3-407, inside the 29A-3-108 window.

The Grounds South Dakota Recognizes

SDCL 29A-3-407 lists the grounds in one sentence: "Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation." Each one maps to a fact the challenger has to prove.

  • Lack of testamentary capacity. SDCL 29A-2-501 says an individual eighteen or more years of age "who is of sound mind" may make a will. The statute does not define sound mind, so the argument turns on evidence about the testator's condition when the will was signed.
  • Lack of testamentary intent. The document was never meant to work as a will, even if it looks like one.
  • Undue influence. Someone overpowered the testator's own wishes so the will reflects that person's choices. The probate code names the ground and leaves its elements to the courts.
  • Fraud and duress. The testator was deceived about the document or its contents, or signed under threat.
  • Mistake. A mistake that goes to what the testator was signing.
  • Revocation. SDCL 29A-2-507 says a will is revoked by a later will that revokes it expressly or by inconsistency, or by a revocatory act such as burning, tearing, canceling, obliterating or destroying it, done by the testator with intent to revoke or by another person in the testator's conscious presence and at the testator's direction. SDCL 29A-2-508 says no change of circumstances revokes a will except as provided in 29A-2-803 and 29A-2-804.

When a beneficiary caused the death

SDCL 29A-2-803 is the slayer rule, and it works without anyone attacking the will. An individual who feloniously and intentionally kills the decedent forfeits all benefits under the chapter, and the killing revokes any revocable gift to the killer in a will, trust or other governing instrument, along with any nomination of the killer as personal representative, trustee or agent. Under 29A-2-803(g), a conviction settles the question. Absent a conviction, the court decides by a preponderance of the evidence whether the person would be found criminally accountable. The will stays valid, and it is read as if the killer disclaimed the revoked gifts.

The divorce rule in SDCL 29A-2-804 works the same way. Unless the will, a court order or a property settlement says otherwise, a divorce or annulment revokes gifts to the former spouse and the former spouse's relatives, and their nominations as fiduciaries.

Attacking the signing

Improper execution is the other avenue, and there the burden sits on the other side. SDCL 29A-3-407 says proponents of a will have "the burden of establishing prima facie proof of due execution in all cases." The execution rules live in SDCL 29A-2-502: a writing, the testator's signature and two witnesses who sign in the testator's conscious presence, or a holographic will whose signature and material portions are in the testator's handwriting. What makes a South Dakota will valid walks through each step.

A signing defect does not end the case on its own. SDCL 29A-2-503 treats a document as properly executed if the proponent proves by clear and convincing evidence that the decedent intended it to be a will, a revocation, an addition or alteration, or a revival.

SDCL 29A-3-406 decides how execution gets proved in a contested case:

  • A will that is not self-proved. If evidence about execution is needed, the testimony of at least one attesting witness is required, if that witness is within the state and competent and able to testify. Due execution may also be proved by other evidence.
  • A self-proved will. Compliance with the signature requirements is conclusively presumed, and the other execution requirements are presumed subject to rebuttal, without any witness testifying, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.

A self-proving affidavit closes the signature question and leaves capacity, undue influence, fraud, duress, mistake and revocation open.

Two rules about order and burden

SDCL 29A-3-407 adds two procedural rules for contested cases. Each party carries the ultimate burden of persuasion on the matters where it had the initial burden of proof. And when two wills compete, the court decides first whether the later will is entitled to probate. When a will is opposed by a petition declaring intestacy, the court decides first whether the will is entitled to probate.

How the Case Moves

The statutes describe the path a South Dakota contest follows once it starts.

  1. Venue. SDCL 29A-3-201 puts venue for the first proceeding in the county where the decedent was domiciled at death, or, for a nonresident, any county where the decedent's property was located. Later proceedings stay in that county unless transferred. The case goes to the Clerk of Courts for that county, and SDCL 16-6-9(5) makes probate part of the circuit court's original jurisdiction. The circuit court that hears it is listed county by county.
  2. The petition or the objection. A petition to set a will aside is brought under 29A-3-401, with the contents SDCL 29A-3-402 requires. A person who is already a party to a formal proceeding and opposes the will must put the objection in writing, because SDCL 29A-3-404 says any party who opposes the probate of a will "for any reason shall state in the pleadings his or her objections to the probate."
  3. Notice. Under SDCL 29A-3-403, the court fixes a time and place of hearing. The petitioner gives notice to the heirs, the devisees and personal representatives named in any will offered for probate, any personal representative still serving, and anyone who filed a demand for notice, plus notice by publication to interested persons who are unknown or cannot be located. SDCL 29A-1-401 sets the method: mailing or personal delivery at least fourteen days before the hearing, or three weekly publications in a legal newspaper, the last at least fourteen days out.
  4. Hearing and order. SDCL 29A-3-409 has the court find that the testator is dead, that venue is proper and that the proceeding began within the 29A-3-108 limit. It then determines domicile, the heirs and the testacy status, and any will found valid and unrevoked is formally probated.

What it costs to file

The Unified Judicial System's "Guide to Filing Fees and Court Costs, Civil Filings Only," effective July 1, 2026, sets the court charges:

FilingFeeBasis
Probate / Estate, when the petition opens a new estate$122.00 ($75.00 filing, $40.00 automation, $7.00 law library)SDCL 16-2-29(1), UJS schedule
Answer fee or responsive pleading (civil)$25.00SDCL 16-2-58.2, UJS schedule

The schedule has no row named for a written objection in an estate that is already open. SDCL 16-2-58.2 collects $25.00 for "the answer or initial responsive pleading in a circuit court proceeding," so the Clerk of Courts is the office that says which charge applies to an objection. SDCL 16-2-29.2 lets the court waive a filing fee on a motion supported by the filer's affidavit of inability to pay.

Attorney fees and the jury

SDCL 29A-3-720 says a personal representative, or a person nominated as one, who defends or prosecutes a proceeding in good faith, "whether successful or not," is entitled to necessary expenses and reasonable attorney's fees from the estate. The same section goes one step further than many states: the court may also award necessary expenses and reasonable attorney's fees to any person who prosecuted or defended an action that brought the estate a large benefit. That second sentence is discretionary and turns on the result for the estate, so a challenger cannot count on it.

On juries, SDCL 29A-1-306(a) is direct. If duly demanded, a party is entitled to trial by jury in a formal testacy proceeding, and in any other proceeding where a controverted question of fact arises on which a party has a constitutional right to a jury. Under subsection (b), when there is no right to a jury or the right is waived, the court may call a jury whose verdict is advisory only.

No-Contest Clauses

Many wills include a clause that cuts out anyone who challenges the will. SDCL 29A-3-905 limits its reach: a provision "purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings."

Two points follow from the text. The protection covers other estate proceedings as well as a direct attack on the will. And the statute does not define probable cause, so whether a given challenge clears that bar is a question for the court and for the attorney evaluating the facts before filing.

A Trust Runs on Its Own Clock

Many South Dakota plans put most of the property in a revocable trust, and the will only pours leftovers into it. A will contest does not reach the trust. SDCL 55-4-57(a) bars a proceeding to contest whether a trust was validly created after the first of several dates, including one year after the settlor's death and sixty days after the trustee sends the contestant a copy of the trust instrument and a notice of the time allowed. For a trust that was revocable at death and that the settlor's last will refers to by name, subdivision (a)(5) adds the last date a petition for review of the will could be filed. Contesting a trust instead covers that separate process.

What Happens After the Order

SDCL 29A-3-412 makes a formal testacy order final as to all persons who were properly notified, by personal service or publication, on every issue the court considered or might have considered about whether the decedent left a valid will and who the heirs are. It is subject to appeal and two narrow reopening routes:

  • A later-offered will. The court shall entertain a petition to vacate its order and probate another will if the proponents of the later will got no notice or only publication notice of the earlier proceeding. The door stays shut if they knew of both the earlier proceeding and the later will at the time.
  • An omitted heir. Where intestacy was ordered, the heirs may be redetermined if a person was left out and did not know of the relationship, did not know of the death, or got no notice except by publication.

Either petition must be filed before the earliest of three dates in 29A-3-412(3): the order approving final distribution (or six months after a closing statement), the 29A-3-108 deadline, or twelve months after the order being challenged. South Dakota left 29A-3-413 reserved, so the code carries no separate section for vacating a formal testacy order for other cause.

If the challenged will falls, the estate passes under an earlier valid will if one exists, and otherwise under South Dakota intestate succession. A successful contest also reshuffles who serves, because 29A-3-108(3) frames the proceeding as one to secure appointment of the person with legal priority.

Before any of that, four narrow questions decide whether a South Dakota contest is even available: whether the person filing is an interested person under 29A-1-201(23), whether the 29A-3-108 window is still open, whether the facts fit one of the grounds 29A-3-407 names, and whether the will carries a 29A-3-905 penalty clause. A licensed South Dakota attorney answers all four against the actual documents.

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Sources:

It is not legal advice.

Information current as of September 27, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in South Dakota can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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