Matter of the Estate of Gaaskjolen

#28884-a-SRJ
2020 S.D. 17

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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In the Matter of the Estate of
DORA LEE GAASKJOLEN, Deceased.

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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
PERKINS COUNTY, SOUTH DAKOTA

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THE HONORABLE WARREN G. JOHNSON
Retired Judge

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JOHN STANTON DORSEY of
Whiting, Hagg, Hagg, Dorsey
& Hagg, LLP
Rapid City, South Dakota Attorneys for appellant
Audrey Lorius.

MICHAEL M. HICKEY
SARAH BARON HOUY
KELSEY B. PARKER of
Bangs, McCullen, Butler
Foye and Simmons, LLP
Rapid City, South Dakota Attorneys for appellee
Vicki Penfield.

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ARGUED
OCTOBER 1, 2019
OPINION FILED 04/01/20
#28884

JENSEN, Justice

[¶1.] In 1990, Dora Lee Gaaskjolen and her husband Marlin executed

reciprocal wills giving their property to one another upon death. Their daughters,

Audrey and Vicki, were named as equal, alternate beneficiaries. Marlin died in

2003. In 2012, Dora Lee executed a new will that disinherited Vicki and left her

entire estate to Audrey. Dora Lee was 87 years of age at the time. Dora Lee

executed another will shortly thereafter and a codicil to her will in 2014. The latter

will and codicil also disinherited Vicki and left Dora Lee’s property to Audrey. After

Dora Lee’s death in 2016, a petition was filed to probate Dora Lee’s last will and

codicil. Vicki challenged the will and codicil, claiming Dora Lee lacked

testamentary capacity and that Audrey had unduly influenced their mother.

Following a trial, the circuit court determined that Dora Lee had testamentary

capacity but invalidated the will and codicil on the basis of undue influence. Audrey

appeals the circuit court’s decision. We affirm.

Facts and Procedural History

[¶2.] Marlin and Dora Lee were successful ranchers in Meadow, South

Dakota, owning approximately 3,000 acres of ranch and farmland. Throughout

their lives, Marlin and Dora Lee made every effort to treat their daughters and

grandchildren equally, as evidenced by the wills that they both executed in 1990.

Dora Lee also made certain at Christmastime that each child’s candy bag included

the same kind and quantity of candy. Later, when one of the grandchildren

defaulted on a $5,000 loan from Dora Lee, she gave a like sum to each of the other

grandchildren.

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[¶3.] In 1999, Audrey, a registered nurse, moved to the ranch to care for her

parents. Vicki lived about 30 miles away from the family ranch. After Marlin’s

death, Audrey continued to live at the ranch and provided care for Dora Lee. Dora

Lee had multiple health issues including a hip surgery, ulcers, skin cancer, and a

mitral valve prolapse. In 2007, Dora Lee suffered a brain injury after a longhorn

heifer kicked her. The brain injury forced her to spend several weeks in the

hospital and undergo a lengthy rehabilitation. Dora Lee did not fully recover from

the injury and suffered from facial aphasia, making it difficult for her to speak in

more than one or two-word responses.

[¶4.] Vicki and Audrey both assisted their mother after the injury. Audrey

provided full-time personal care while Vicki managed Dora Lee’s finances. In

exchange for providing full-time care, Audrey was given possession of the south half

of the ranch property rent free, allowing Audrey to maintain her livestock on the

property. Audrey also paid herself each month from Dora Lee’s account. Audrey

increased these payments over time. The benefits Audrey received for Dora Lee’s

care were later valued at $6,315 per month.

[¶5.] Starting in 2009, Dora Lee leased the north half of the property to

Vicki for a reduced rate of rent. Vicki subleased the north half for more money than

her rental obligation and deposited the excess funds into a special account for Dora

Lee’s future needs. Vicki often visited the ranch, but by 2012 she was no longer

able to drive because of Parkinson’s disease. As a result, Vicki was limited to

visiting when someone was available to drive her to the ranch.

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[¶6.] In early 2012, Audrey told Vicki she wanted to take over the north half

of the ranch because she needed more pasture for her cattle and horses. Vicki

expressed concern because she planned to sublease the north half of the farm to her

daughter and son-in-law. In August 2012, Audrey again brought up the lease issue

to Vicki, claiming that Dora Lee wanted to lease the north half of the ranch to

Audrey. Later that month when Vicki’s husband visited the ranch, he became very

upset after Dora Lee communicated to him that she wanted to lease the north half

of the ranch to Audrey.

[¶7.] After this encounter Audrey prepared a termination letter, purportedly

signed by Dora Lee, which terminated Vicki’s lease. Vicki then filed an emergency

petition for appointment of a temporary conservator. The court appointed Dacotah

Bank as temporary conservator. In pursuing the conservatorship, Vicki expressed

concerns about Dora Lee’s health, Audrey’s unlimited authority to write checks on

Dora Lee’s account, and the adequacy of Audrey’s care of Dora Lee.

[¶8.] Audrey contacted and hired attorney John Nooney to represent Dora

Lee in the guardianship action. From 2012 to 2014, Nooney and his associate, Marli

Schippers, met with Dora Lee a total of four times. All other communications were

with and through Audrey. Although Nooney’s letters were addressed to Dora Lee, it

was Audrey who opened the mail and communicated with Nooney. According to

Audrey, Dora Lee was upset about the conservatorship, the lease dispute with

Vicki, and the fact that Vicki did not visit her after the conservatorship was in

place. However, evidence presented at trial showed that these were Audrey’s

personal feelings. Evidence was also presented that Audrey prevented Vicki from

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coming to the ranch and communicating with Dora Lee after the conservatorship

was filed.

[¶9.] Audrey claimed that in the fall of 2012, Dora Lee told her she wanted

to exclude Vicki from her will. She contacted attorney James Elsing on December 4,

2012, about a new will for Dora Lee. Audrey spoke with Elsing for more than an

hour and expressed the reasons she disliked Vicki. She discussed with Elsing the

lease issue on the north half of the property, the conservatorship, and the fact Vicki

did not visit often enough. Audrey also told Elsing that Dora Lee wanted to leave

everything to Audrey, to the exclusion of Vicki. Before speaking with Dora Lee,

Elsing prepared a will leaving all the property to Audrey. He sent a draft for

Audrey to review. Audrey made a few changes to the will and also asked if a clause

could be put into the will that disinherited anyone attempting to contest the will.

[¶10.] Two days later, Elsing traveled to Dora Lee’s home with a draft of the

will he had discussed with Audrey. Audrey arranged for two witnesses to be

present. Elsing asked Audrey and the witnesses to step out of the room while he

discussed the will with Dora Lee. Elsing believed from his meeting with Dora Lee

that the will reflected Dora Lee’s intentions. Dora Lee then executed the will. After

the will was drafted, Elsing made additional estate planning suggestions to Audrey

that could be implemented if the guardianship was not in place. Audrey responded,

“You know things we can do to save mom’s money and items from going to the

wrong side that I have no clue about so if you are willing we sure could use you on

our side.”

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[¶11.] A few days later, Schippers learned from Audrey how the new will had

been made. She told Audrey there would be serious concerns about the validity of

the new will. Nooney and Schippers then suggested that another will would need to

be drafted. After Nooney was unable to locate an attorney in the Rapid City area

willing to draft another will, Audrey contacted Elsing about drafting the will for

Dora Lee. Audrey told Elsing that the lawyers in Rapid City advised her another

will would need to be signed for it to “hold up” in court. Audrey also told Elsing that

the lawyers suggested Elsing should meet independently with Dora Lee two or

three times before she signed the second will.

[¶12.] Thereafter, Elsing met with Dora Lee on December 14 and 18, 2012

concerning a new will. At the first meeting, Dora Lee verbally responded to a list of

26 questions prepared by Elsing concerning her property, capacity, and

testamentary intentions. At the second meeting, Dora Lee answered similar “yes

and no” questions on a written document by underlining her answers and wrote her

answers to other questions. Elsing testified that he also read through the will with

Dora Lee and confirmed that it expressed her wishes. Dora Lee then executed the

will on December 18, 2012. This second will was identical to the prior will signed on

December 6, 2012. Elsing returned on January 7, 2013 to confirm the will reflected

Dora Lee’s intentions. These meetings occurred at the ranch when Audrey was out

of the room. However, Audrey made the arrangements for the visits. Audrey also

arranged for two witnesses to be available when the new will was executed.

[¶13.] After the will was executed, a registered nurse conducted a home study

for the conservatorship. The nurse concluded that Dora Lee wanted to remain in

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her home, and that Audrey was trying to provide appropriate care for her mother.

However, she also expressed concerns that Audrey was isolating Dora Lee from

Vicki and her family and suggested scheduling regular visits.

[¶14.] A hearing on the petition for a permanent conservator was held on

February 20, 2013. Dora Lee testified at the hearing but was mostly unresponsive

to questions. The court granted the petition and named Dacotah Bank as her

conservator. The decision was appealed on Dora Lee’s behalf to this Court.*

[¶15.] In May 2013, attorney Shelley Lovrien, on behalf of Dacotah Bank,

visited Dora Lee. Dora Lee told Lovrien she did not remember signing anything to

engage an attorney and did not know who her attorney was. She also stated that

she knew there were changes made to her will but she did not know what they

were. She also expressed that she thought her children and grandchildren were the

beneficiaries of her will.

[¶16.] In 2014, Nooney suggested that Dora Lee make a codicil to her will to

reaffirm her testamentary intentions and name an independent fiduciary to replace

Audrey as personal representative for Dora Lee’s estate. He believed that this

might further negate a claim of undue influence arising from the will. Elsing met

with Dora Lee regarding the codicil Nooney suggested. On October 24, 2014, Dora

Lee signed a codicil reaffirming her December 18, 2012 will. The only change the

codicil made to the will substituted U.S. Bank for Audrey as Dora Lee’s personal

representative. Although the Dacotah Bank attorneys and trust officers were

* In re Conservatorship of Gaaskjolen, 2014 S.D. 10, ¶ 20, 844 N.W.2d 99, 103.
(Affirming that the appointment of Dacotah Bank as permanent conservator
was in the best interest of Dora Lee.)
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present when Dora Lee executed the codicil, Nooney forbade them from meeting

with Dora Lee unless he or his associate were present.

[¶17.] Dora Lee died on March 29, 2016. After a probate of Dora Lee’s estate

was opened, Vicki challenged the validity of both the will and codicil. Following a

five-day trial on Vicki’s petition, the court entered a memorandum decision, and

findings of fact and conclusions of law invalidating the will and codicil. The circuit

court found that Dora Lee had testamentary capacity to make a will but concluded

both the will and codicil were subject to undue influence by Audrey. The court

found a presumption of undue influence existed and that Audrey failed to rebut the

presumption. The court further found that Vicki established that Dora Lee’s last

will and codicil were the result of undue influence by Audrey.

Standard of Review

[¶18.] [T]he issue of whether undue influence exists is a question of
fact for the trial court to determine . . . . We will not set aside a
trial court’s findings of fact unless they are clearly erroneous. A
trial court’s finding is clearly erroneous if, after reviewing the
entire evidence, we are left with the definite and firm conviction
that a mistake has been made. All conflicts in the evidence
must be resolved in favor of the trial court’s determinations.
The credibility of the witnesses, the weight to be accorded their
testimony, and the weight of the evidence must be determined
by the circuit court and we give due regard to the circuit court’s
opportunity to observe the witnesses and the evidence.

In re Estate of Pringle, 2008 S.D. 38, ¶ 18, 751 N.W.2d 277, 284.

Analysis & Decision

[¶19.] Audrey claims the circuit court erred in concluding that a presumption

of undue influence arose and that she had failed to rebut the presumption. She also

claims the court erred in determining Dora Lee’s last will and codicil were the result

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of her undue influence. Vicki responds that the court correctly determined that

Audrey failed to rebut the presumption of undue influence, but claims that even if

Audrey rebutted the presumption, Vicki satisfied her burden of establishing undue

influence.

1. Whether the circuit court erred in finding a presumption of
undue influence and that Audrey failed to rebut the presumption.

[¶20.] “A presumption of undue influence arises when there is a confidential

relationship between the testator and a beneficiary who actively participates in

preparation and execution of the will and unduly profits therefrom.” Pringle, 2008

S.D. 38, ¶ 39, 751 N.W.2d at 289 (quoting In re Estate of Dokken, 2000 S.D. 9, ¶ 28,

604 N.W.2d 487, 495). This presumption shifts the burden “to the beneficiary to

show he took no unfair advantage of the decedent. However, the ultimate burden

remains on the contestant to prove the elements of undue influence by a

preponderance of the evidence.” Id. (emphasis omitted) (quoting Dokken, 2000 S.D.

9, ¶ 28, 604 N.W.2d at 495).

[¶21.] The beneficiary’s burden arising from the presumption is referred to as

“the burden of going forward with the evidence.” Id. at ¶ 40 (emphasis omitted).

This burden differs from the ultimate burden of persuasion. The burden to rebut a

presumption “disappears when evidence is introduced from which facts may be

found.” Id. (quoting McKiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W.

445, 447 (1941)).

A presumption is not evidence of anything, and only relates to a
rule of law as to which party shall first go forward and produce
evidence sustaining a matter in issue. A presumption will serve
as and in the place of evidence in favor of one party or the other
until prima facie evidence has been adduced by the opposite
party; but the presumption should never be placed in the scale
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to be weighed as evidence. The presumption, when the opposite
party has produced prima facie evidence, has spent its force and
served its purpose, and the party then, in whose favor the
presumption operated, must meet his opponent’s prima facie
evidence with evidence, and not presumptions.

Id. (quoting Peters v. Lohr, 24 S.D. 605, 124 N.W. 853, 855 (1910)).

[¶22.] Here, there is ample evidence that a confidential relationship existed

between Audrey and Dora Lee and that Audrey actively participated in making a

will and codicil that benefitted Audrey. The circuit court found a confidential

relationship existed between Audrey and Dora Lee from at least 2007 until Dora

Lee’s death in 2016. During this time, Audrey was the only other person living with

Dora Lee and, because of her physical limitations, Dora Lee depended on Audrey for

nearly everything. Moreover, Audrey controlled who had access to visit and

communicate with Dora Lee. Audrey also contacted the attorneys and expressed to

them that Dora Lee wanted to disinherit Vicki and leave everything to Audrey. The

circuit court found that “[a]lthough Audrey was not physically in the room when the

wills and codicil were executed, she was instrumental in dealing with the attorneys

and suggesting changes to the proposed will. She also arranged for the presence of

witnesses on each occasion.”

[¶23.] Because a presumption of undue influence arose on these facts, Audrey

had the burden to produce evidence that she “took no unfair advantage of the

decedent.” Dokken, 2000 S.D. 9, ¶ 28, 604 N.W.2d at 495. Our evidentiary rule for

presumptions in civil cases requires more than “[m]ere assertions, implausible

contentions, and frivolous avowals . . . to defeat a presumption.” Stockwell v.

Stockwell, 2010 S.D. 79, ¶ 21, 790 N.W.2d 52, 60-61 (quoting In re Estate of

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Dimond, 2008 S.D. 131, ¶ 9, 759 N.W.2d 534, 538. “When substantial, credible

evidence has been introduced to rebut the presumption, it shall disappear from the

action or proceeding, and the jury shall not be instructed thereon.” SDCL 19-19-

301. We have stated that “‘substantial, credible evidence’ should not ordinarily be

equated with meeting any particular burden of proof.” Dimond, 2008 S.D. 131, ¶ 9,

759 N.W.2d at 537. Rather, “the substantial, credible evidence requirement means

that a presumption may be rebutted or met with such evidence as a trier of fact

would find sufficient to base a decision on the issue, if no contrary evidence was

submitted.” Id.

[¶24.] In Pringle, the circuit court determined a presumption of undue

influence arose, but the beneficiary presented evidence to rebut the presumption.

2008 S.D. 38, ¶ 43, 751 N.W.2d at 291. This evidence included the fact that the

beneficiary never prevented anyone from communicating or visiting the decedent,

the new will was not inconsistent with the decedent’s general wishes, and the

decedent had independent legal advice when contemplating her last will. Id.

[¶25.] In considering the presumption that arose in this case, the circuit court

contrasted the facts from Pringle and noted that Audrey was in total control of who

visited and communicated with Dora Lee. The court also highlighted evidence that

Audrey expressed ill will toward Vicki and her family, advised Vicki that she was

not welcome at the family ranch, and prevented Vicki from visiting and

communicating with Dora Lee. The circuit court also noted that Audrey was

actively involved in communicating with all the attorneys representing Dora Lee in

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the conservatorship and estate planning. Based on these facts, the circuit court

determined Audrey failed to rebut the presumption of undue influence.

[¶26.] However, there was other evidence presented by Audrey that the

circuit court did not address in considering the presumption. Dora Lee’s

housekeeper testified that Dora Lee expressed frustration to her about the

conservatorship and that Vicki’s actions hurt her. Dora Lee also told the

conservator that she wanted to disinherit Vicki because she was upset about the

conservatorship. Dora Lee’s attorneys testified that Dora Lee expressed a desire to

exclude Vicki from her estate plan. Elsing also testified about the multiple

meetings and written questions he posed to Dora Lee to ensure that she wanted to

disinherit Vicki. Attorneys Nooney, Schippers, and Elsing each testified that their

client was Dora Lee, not Audrey. Based upon their interactions with Dora Lee, the

attorneys testified that they did everything they could to ensure the will and codicil

reflected what they believed to be Dora Lee’s testamentary intentions.

[¶27.] This evidence rebutted the presumption of undue influence, as a trier

of fact could have found this evidence sufficient without considering contrary

evidence to show Audrey did not take unfair advantage of Dora Lee. As we have

previously stated, “the presumption of undue influence can be rebutted ‘by showing

that the one allegedly overpersuaded had independent advice that was neither

incompetent nor perfunctory.’” Pringle, 2008 S.D. 38, ¶ 43, 751 N.W.2d at 290

(quoting Black v. Gardner, 320 N.W.2d 153, 159 (S.D. 1982). Because Audrey

presented sufficient evidence to rebut the presumption of undue influence, we must

determine whether the circuit court properly determined that Vicki met her burden

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of persuasion by proving undue influence with respect to Dora Lee’s last will and

codicil.

2. Whether the circuit court erred in finding the last will and the
codicil invalid because of Audrey’s undue influence.

[¶28.] The contestant of a testamentary document has the burden of

“prov[ing] each of the four elements of undue influence by the greater weight of the

evidence.” Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at 291. These four elements are:

“(1) decedent’s susceptibility to undue influence; (2) opportunity to exert such

influence and effect the wrongful purpose; (3) a disposition to do so for an improper

purpose; and (4) a result showing the effects of such influence.” Id.

[¶29.] The circuit court determined that Dora Lee had testamentary capacity

when she signed her last will and codicil. However, this does not mean she was

immune from undue influence. In re Estate of Borsch, 353 N.W.2d 346, 349 (S.D.

1984). “Susceptibility to influence does not mean mental or testamentary

incapacity. In fact, the application of undue influence presupposes mental

competency.” Id. (quoting In re Estate of Metz, 78 S.D. 212, 221, 100 N.W.2d 393,

398 (1960)). When considering whether an individual is susceptible to undue

influence, “evidence of physical and mental weakness is always material . . . .”

Borsch, 353 N.W.2d at 350. “Obviously, an aged and infirm person with impaired

mental faculties would be more susceptible to influence than a mentally alert

younger person in good health.” Id. (quoting Metz, 78 S.D. at 221, 100 N.W.2d at

398).

[¶30.] Here, there is little question from the evidence that Dora Lee was

susceptible to undue influence. Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at 291.

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Dora Lee was 87 years old when she executed the will and 89 when she executed

the codicil. She suffered from multiple medical problems that made it impossible

for her to care for herself, including severe dementia, rheumatoid arthritis, chronic

atrial fibrillation, valvular heart disease, expressive aphasia, and a traumatic brain

injury. During the last ten years of her life, Dora Lee relied on Audrey’s full-time

care to remain in her home. Moreover, the court found that Dora Lee “could not

make phone calls, retrieve her own mail, use a computer, make a meal, or drive a

car.”

[¶31.] There was also medical evidence to support the circuit court’s findings

that Dora Lee was susceptible to undue influence. Several doctors conducted

medical evaluations and interviews with Dora Lee in 2012. One doctor stated, “She

suffers from moderate to severe memory, orientation, problem solving, and

information processing deficits which are further complicated by her expressive

aphasia . . . .” A Licensed Clinical Neuropsychologist concluded,

Secondary to her dense verbal aphasia, she sometimes
responded with nonwords or with word substitutions, making it
unclear as to whether she actually knew the answer to the
question or not . . . . This woman appears to be very impaired
from a neuropsychological perspective . . . . It is also very
difficult to determine what she knows and does not know
because of the word substitutions that occur.

[¶32.] There was also evidence to support the circuit court’s findings that

Audrey had the opportunity to exert influence over Dora Lee. Audrey lived on the

family ranch with her mother from 2007 until Dora Lee’s passing in 2016 and was

her sole caregiver. Dora Lee relied on Audrey for nearly everything, including:

bathing, dressing, brushing her teeth, toileting, moving to and from her wheelchair,

transportation, meal preparation, shopping, and medication management. Audrey
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also controlled who could communicate with and visit Dora Lee. The circuit court

found this enabled Audrey to essentially isolate Dora Lee from having any contact

with other family members, including Vicki.

[¶33.] The third element of undue influence is a disposition to unduly

influence for an improper purpose. Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at 291.

This is “evident from persistent efforts to gain control and possession of testator’s

property.” Borsch, 353 N.W.2d at 350 (quoting Metz, 78 S.D. at 222-23, 100 N.W.2d

at 398). The circuit court found that Audrey was predisposed to exert undue

influence over Dora Lee, and the record supports that finding. Audrey played a

major role in terminating Vicki’s lease of the north half of the family ranch that

Dora Lee had previously leased to Vicki for several years. It was not until after

Vicki refused to allow Audrey to lease the land that Audrey drafted and had Dora

Lee sign the termination of the lease between Dora Lee and Vicki.

[¶34.] Audrey’s disposition to influence Dora Lee was also apparent in her

feelings towards Vicki and her desire that Vicki not receive anything from Dora Lee.

Audrey’s emails and communications with Vicki and others show that she disliked

and was angry at her sister. After the conservatorship was filed, Audrey told

Nooney, “The fear I have is that they will get total control of mom’s money, land,

etc. shove her in a nursing home and I will have to leave the ranch that I have

sweated, busted my ass over and loved all my life. I want to be buried on this

place.”

[¶35.] On September 17, 2012, Audrey sent Vicki a lengthy email stating

And you call yourself a Christian? You are no more a Christian
than someone who robs or murders their loved ones. I hope God

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will forgive you for what you have done to mom as I know I
never will. . . . You people remind me of a vulture picking on the
bones of an animal before it’s dead . . . . [T]he devil has invaded
your hearts and minds . . . . As far as I am concerned I have no
flesh and blood sister, after what you have done to your own
mother. I’m done with you as family. . . . How you could do this
is beyond me and I don’t know how any of you can sleep at night.
Live with yourselves you three knowing what you have done to
mom and May God Have Mercy On Your Black, Cold Souls when
it comes time to enter the pearly gates.

[¶36.] Finally, Audrey’s active efforts in arranging for Dora Lee to draft a

new will that benefitted her, as well as her statements to the attorneys, reflect

Audrey’s motivations. Audrey had many of the communications with Dora Lee’s

attorneys until Dora Lee passed away and was often present when Dora Lee

communicated with the attorneys. Throughout this time, Audrey continually

interposed herself into the process of Dora Lee’s estate planning.

[¶37.] The fourth and final element of undue influence is “a result clearly

showing the effects of such influence.” Pringle, 2008 S.D. 38, ¶ 44, 751 N.W.2d at

291. The will and codicil completely disinherited Vicki and left Dora Lee’s entire

estate to Audrey. This change increased the value of Audrey’s inheritance by

approximately 1.5 million dollars. The circuit court found that this “disposition is

totally contrary to the way Dora Lee had lived and treated her daughters and

grandchildren.” This finding is supported by evidence of Dora Lee’s desire to treat

her children and grandchildren equally, as well as the original wills signed by

Marlin and Dora Lee that equally divided their estate between Audrey and Vicki.

Even after Marlin’s death, Dora Lee did not change her will until after the dispute

arose between Audrey and Vicki over the north half of the ranch. There was also

evidence that Dora Lee and Vicki had a good relationship, and it was Audrey, not

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Dora Lee, who had animosity towards Vicki and sought to keep Vicki from visiting

Dora Lee.

[¶38.] Audrey argues that even if there was evidence of undue influence as to

the will, the codicil removed any taint of undue influence. She relies on In re Estate

of Elliott, 537 N.W.2d 660, 665 (S.D. 1995), stating that where “a subsequent codicil

republishes the prior will, any taint in the earlier will from undue influence is

removed if there is no evidence of undue influence at the time of the subsequent

codicil.” In Audrey’s view, this statement reflects a rule that allows a party who

unduly influenced a testator’s disposition to purge the taint of the wrongful conduct

in all instances by simply republishing the will without the wrongdoer’s

involvement. We do not read Elliot in such broad terms.

[¶39.] In Elliott, we affirmed the circuit court’s determination that the

plaintiffs had failed to establish either the presumption or existence of undue

influence. 537 N.W.2d at 666. Our statement about republishing a will stated only

that the taint can be removed, not that republication definitively removes all

evidence of undue influence. Id. at 665. The inquiry ultimately remains a fact-

driven analysis which we review under our deferential clear error standard. Where,

as here, the factfinder determines that the evidence of undue influence is so

pervasive that the taint is not removed, this statement from Elliot is unavailing.

Though evidence was presented that Audrey was not directly involved in the

making of Dora Lee’s codicil, the unnatural disposition which benefitted her

remained, and the court’s finding of undue influence was not clearly erroneous. See

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Elliot, 537 N.W.2d at 665 (observing the republished will omitted a provision which

would have benefitted one of the parties accused of undue influence).

[¶40.] Audrey also claims that Dora Lee’s access to independent counsel

removed any taint of undue influence as a matter of law. She cites prior language

from this Court that “the cloud of undue influence is removed on a showing that the

grantor had independent advice that is neither incompetent nor perfunctory.”

Walsh v. Shoulders, 87 S.D. 270, 279, 206 N.W.2d 60, 65 (1973). However, this

statement from Walsh was made in the context of considering whether there was

evidence to rebut a presumption of undue influence. Id. We have already concluded

that the involvement of competent counsel in this case rebutted the presumption of

undue influence. Although the independent legal advice Dora Lee received

concerning her estate plan was probative to the question of undue influence, it was

not dispositive and did not nullify the circuit court’s ability to weigh and draw

inferences from all the evidence to determine whether the will and codicil were

subject to undue influence.

[¶41.] “[T]estamentary capacity and undue influence are non-technical, fact-

based inquiries that require a trial court to examine the parties’ motives and states

of mind.” Stockwell, 2010 S.D. 79, ¶ 16, 790 N.W.2d at 59. The circuit court

entered findings on all four elements of undue influence and determined the

evidence supported its conclusion that Dora Lee’s last will and codicil were subject

to undue influence. The court also found Audrey’s testimony lacked credibility, and

her denial of the claims of undue influence were confusing, evasive, and

contradictory. There is substantial evidence to support all of the court’s findings.

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Therefore, the circuit court’s determination of undue influence by Audrey was not

clearly erroneous.

[¶42.] We affirm.

[¶43.] GILBERTSON, Chief Justice, and KERN, SALTER, and DEVANEY,

Justices, concur.

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