Practice Areas

• Auto Accident
• Business Litigation
• Criminal Defense
• Will Contest

8 Questions You Should ask a Will Contest or Estate Litigation Lawyer Before You Hire A Lawyer

1. Have you ever tried a Will Contest or Estate case to a jury? If so, what were the results of that trial?

2. Have you ever had a Will Contest or Estate case be appealed to the Supreme Court? If so, what were the results of that appeal?

3. What red flags are there that show that a Will was improperly done?

4. What red flags show that someone is misusing or mishandling a relative's property or estate?

5. What is a breach of fiduciary duty?

6. What can be done if I think that someone has forced my loved one's Will to be changed so that they benefit instead of who my loved one wanted to benefit?

7. Can you guarantee me that you will win at trial?

8. Do you ever defend against someone who is contesting a will?


We think that you deserve answers to all of these questions before you hire a lawyer in your Will Contest or Estate case. Here are our answers to those questions:


1. Have you ever tried a Will Contest or Estate case to a jury? If so, what were the results of that trial?

Yes, we have tried two cases in the past several years that went to a jury. The most recent case was Estate of Duebendorfer, a Turner County, South Dakota, case that went to trial in 2005 and resulted in a jury verdict for our clients, who were contesting a Will on the basis of undue influence. This jury verdict led to the eventual recovery by our clients of over $ 300,000.00 of assets. We also tried the case of Ward v. Lange, a case that involved nephews improperly taking property from their uncle, and that resulted in a damage award for the Personal Representative of the Estate of Walter O'Keefe, in the amount of $100,000.00.

2. Have you ever had a Will Contest or Estate case be appealed to the Supreme Court? If so, what were the results of the appeal?

Yes, the Estate of Duebendorfer, 721 N.W.2d 438 (S.D. 2006) case went to the South Dakota Supreme Court and was affirmed by the Court. You can link to a copy of that decision here. Its companion case, Bienash v. Moller, 721 N.W2d 431 (S.D. 2006) also went before the South Dakota Supreme Court and was affirmed. You can link to a copy of that case here.

Ward v. Lange, 553 N.W.2d 246 (S.D. 1996) also went to the South Dakota Supreme Court and was affirmed by the Court. You can link to a copy of that decision here. Its companion case, Estate of Walter O'Keefe, 583 N.W.2d 138 (S.D. 1998) also went to the Supreme Court and was affirmed in most respects.


3. What red flags are there that show that a Will was improperly done?

There are a number of red flags that can show a Will was improper. Here are a few: Was the person who signed the Will (the "testator" if a man, or "testatrix" if a woman) very ill right before the Will was signed? Was the testator/testatrix mentally incompetent or suffering from senility or Alzheimer's Disease? Did the testator/testatrix suddenly change the Will to favor one person over other family members? Was someone else present when the Will was signed? Was the Will signed in secret? Does the Will just not make sense? Did the testator/testatrix suddenly become angry at some family members and favor one family member over all others? These are only a few of the red flags-we have seen many, many more.

4. What red flags show that someone is misusing or mishandling a relative's property or estate?

There are also a number of red flags to show that someone is mishandling or misusing another person's property or Estate. Here are a few: Is the relative using the property to benefit himself rather than the rest of the family or the person he/she should be taking care of? Have bank accounts suddenly been changed from the loved one to the relative? Is the relative suddenly taking command of the loved one and acting like he owns the property? Is the relative suddenly "renting" for minimal value the loved one's farmland or other real property? Is the relative suddenly "rich?" Again, these are only a few of the warning signs of mishandling or misusing property.

5. What is a breach of fiduciary duty?

A fiduciary duty is where one person has a legal duty to act in the best interest of another person, and is strictly bound to take no advantage of the other person. This can be an agent, such as a power of attorney or a trustee. Those people are bound by the law to act in the highest good faith for the benefit of the person that gave them the authority to act on their behalf. If anyone breaches a fiduciary duty, they are subject to suit for any damages they cause.

The best example of a recent case we have handled on a breach of fiduciary duty is the Bienash v. Moller, 721 N.W2d 431 (S.D. 2006) case. You can read for yourself what our Supreme Court said about breaches of fiduciary duty in that case. Another breach of fiduciary duty case we handled was Ward v. Lange, 553 N.W.2d 246 (S.D. 1996).

6. What can be done if I think that someone has forced my loved one's Will to be changed so that they benefit instead of who my loved one wanted to benefit?

Any improper Will can be contested in court. This means you would file a "will contest" where evidence can be submitted that the Will was the result of "undue influence", "fraud", or was signed when the testator/testatrix was incompetent. You should talk to a lawyer that has experience in these areas.

7. Can you guarantee me that you will win at trial?

There is no way that we can guarantee anyone that they are going to win a lawsuit. Each case stands or falls on its own merits. You should be skeptical of any claim that you are "guaranteed" to win a lawsuit. What we do is to look at your case in light of the facts of your case, the law, and our experience in these kinds of cases and we give you our best judgment of whether you have a claim that can be pursued. Even then, if we take your case, and we are very selective in the kinds of cases we accept, we never guarantee any result in a case.

It would be nice to claim that we win every case, but we don't. There are no guarantees in life or in lawsuits. Don't ever forget that. Any good trial lawyer will tell you that there are good cases that should be won at trial and are not, and there are weak cases that should be lost but are won. What we try to do is to create an environment that gives us the best chance for us to win at trial, work our tails off, and do the best job we can.

Remember, there are also cases settled that are never publicized. Many clients would consider those cases wins, but we are not going to claim that they are wins like the court cases that we talk about above.

8. Do you ever defend against someone who is contesting a will?

Yes, we do defend folks who are wrongly accused of acting improperly and benefitting from a Will. Not every Will that favors a family member is improper. There are many times there are good reasons for the way a Will is drafted even when it favors one person more than others.

This Report is not legal advice and we are not establishing an attorney-client relationship by providing this information. We are only attempting to give you information so you can make informed decisions. Every case is different and no outcome can be guaranteed. We are happy to consider any potential case and to visit with you about any potential claim. The best advice we can give you is to visit with a lawyer about your potential case.

We are very selective in the cases that we consider because we want to give our clients personal attention to the greatest extent possible. We decline many cases each year. We concentrate on working hard on the cases we accept and do not accept frivolous or unmerited cases.