South Dakota's Requirements for a Will
South Dakota's Requirements for a Will
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South Dakota's Requirements for a Will

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Summary of South Dakota's Will Requirements:

Minimum Age to Make a Will 18
Written Document Required Yes
Nuncupative Wills (Oral) No
Holographic Wills (Hand-Written, Unwitnessed) Yes
Number of Witnesses Required 2
Self-Proving Affidavit Allowed
Statutory Form for Self-Proving Affidavit Yes

 

 

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Statutes Governing South Dakota's Will Requirements:

 

Who may make a will

An individual eighteen or more years of age who is of sound mind may make a will.

South Dakota Codified Laws, 29A-2-501.

 

Holographic will--Validity of non-holographic will--Establishing intent

(a) A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

(b) A will not valid as a holographic will must be:

1.  In writing;

2.  Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; 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.

(c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.

South Dakota Codified Laws, 29A-2-502.

 

Writings intended as wills, etc

Although a document or writing added upon a document was not executed in compliance with § 29A-2-502, 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.

South Dakota Codified Laws, 29A-2-503.

 

Self-proved will

(a) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:

 

I, ________________, the testator, sign my name to this instrument this ______ day of ____________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.
______________________________
Testator


We, ________________, ________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

______________________________
Witness

______________________________
Witness

 

The State of ______________________
County of ________________________

Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.

(Seal)

 

___________________________________

 

___________________________________
(Official capacity of officer)


(b) An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form:

 

The State of ______________________
County of ________________________

We,_____________, _____________, and _____________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her]), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.

 

______________________________
Testator

______________________________
Witness

______________________________
Witness

Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.
(Seal)

 

Signed:

______________________________
(Official capacity of officer)

 

(c) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will's due execution.

South Dakota Codified Laws, 29A-2-504.

 

Who may witness

(a) An individual generally competent to be a witness may act as a witness to a will.

(b) The signing of a will by an interested witness does not invalidate the will or any provision of it.

South Dakota Codified Laws, 29A-2-505.

 

Choice of law as to execution

A written will is valid if executed in compliance with § 29A-2-502 or 29A-2-503 or if its execution complies with the law at the time of execution of the jurisdiction where the will is executed, or of the 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.

South Dakota Codified Laws, 29A-2-506.

[Reference - South Dakota Requirements for a Will]

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