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IN THE MATTER OF THE ESTATE OF ANNA K. HEIBULT, Deceased
[2002 SD 128]

South Dakota Supreme Court
Appeal from the Circuit Court of
The First Judicial Circuit
Turner County, South Dakota

Hon. Arthur L. Rusch, Judge

GREGORY T. BREWERS of
Frieberg, Zimmer, Duncan,
& Nelson LLP
Beresford, South Dakota
Attorneys for appellants
C. Heibult, G. Scott and
M. Silverlake.

RONALD A. PARSONS, Jr.
A. RUSSELL JANKLOW of
Johnson, Heidepriem, Miner,
Marlow and Janklow
Sioux Falls, South Dakota
Attorneys for appellee
R. Heibult.


Considered on Briefs August 28, 2002

Opinion Filed 10/16/2002

#22290
GILBERTSON, Chief Justice

[¶ 1.] Anna K. Heibult executed a will in 1990 devising a larger portion of her property to Ronald Heibult, the youngest of her four children. In 1991, on a visit to California to see the three older siblings, Anna executed a second will and trust dividing the property equally. Neither the original nor a signed copy of the second will was ever found. When Anna died in February 2000, the three older siblings petitioned for adjudication of intestacy. The circuit court, however, granted Ronald’s petition to probate the 1990 South Dakota will. We affirm.

FACTS AND PROCEDURE
[¶ 2.] Anna and George Heibult were married for over fifty years. During these years, they lived on their farm near Parker, South Dakota, and raised four children: Calvin, Georgiann, Melba, and Ronald. Ronald was the only sibling to remain in South Dakota. He farmed with his father until George’s death in 1989. Ronald then took over the operation of the farm and cared for his mother.
[¶3.] After her husband’s death, Anna wished to draft a new will and sought the advice of Attorney John E. Burke. Burke had represented the couple since the 1950’s. Burke testified at trial:
She came, Anna came in and asked me to draw a new will. And she told me that both before and after her husband’s death Ron had always been there when she needed him. Everybody else had moved to California and she wanted to give him a little, some more than she was giving the rest of the children, his brother and sisters.
In accordance with Anna’s instructions, Burke drafted a will that left an undivided one -half interest in the “home place

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South Dakota Law