Holographic Will Upheld - KOTA Territory News

Holographic Will Upheld

Gary Jensen
Beardsley, Jensen and Von Wald

What do you think the following language from a holographic will – written by the testator – means:    
It is my wish that my Estate be Administered my By my daughters and and (sic) upon Sandra L. Kesling (sic) death the Estate shall be divided Equally between my 3 daughters[.]

The Sandra L. Kesling referred to was the wife of the testator/decedent for 29 years.  The three daughters were from a previous marriage.
    Did James Kesling – the testator/decedent – by such language intend to give his wife, Sandra, a life estate in his property then requiring that the property pass to his three daughters upon her death (making them "remaindermen/women")?  Or, did he intend to give the property to his wife, Sandra, and then just express his wish that Sandra pass the property to his 3 daughters upon her death, if she wanted to do that?
    Was the language "ambiguous?"  If so, then "extrinsic evidence" could be considered – testimony from individuals about what they thought James intended.  If the language was not ambiguous, then no such extrinsic evidence could be considered.
    When is language "ambiguous" – when it is "reasonably capable of being understood in more than one sense."  

In an interesting and divided decision – 3 Justices to 2 – the South Dakota Supreme Court decided the language was not ambiguous and that James intended to give Sandra a life estate thereby requiring transfer of the property to his three daughters upon Sandra's death.  In reaching its decision, the Court addressed the "plain language of the will," including its nouns and verbs.  It concluded by stating:

The only reasonable interpretation of James' will is that James intended to give Sandra a life estate in his real and personal property with James' three daughters as remaindermen.  James used unambiguous language that is not reasonable capable of being understood in more than once sense.  Extrinsic evidence is only admissible to clarify an ambiguity, and thus, not needed in this case.  We determine that [James's] intend is clearly expressed with the four corners of the document.

You can read more at In the Matter of the Estate of James W. Kesling, 2012 S.D. 70.

E-mail Gary


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