Legal Question in Wills and Trusts in South Dakota

In south dakota do you needs witnesses when signing a will or can you simply sign the new will?

Asked on 1/10/11, 6:20 am

1 Answer from Attorneys

Jim Craig Craig Law Office

To make the will "self proved" under South Dakota law, it should be signed before two witnesses and a notary public. Signing any other way subjects it to greater scrutiny, but it may still be valid. These are the statutes governing.

29A-2-502. Holographic will - Validity of non-holographic will -

(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.


29A-2-503. Writings intended as wills, etc.

Although a document or writing added upon a document was not executed in compliance with section 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.

503 indicates a trial, and trials can be expensive. Far better to do it right and avoid that expense.

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Answered on 1/17/11, 7:32 am

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