In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Forty-first up, South Dakota.

In re: Estate of Pringle, 2008 S.D. 38, 751 N.W.2d 277, 284:

The contestant of a testamentary document has the burden of proving each of the four elements of undue influence by the greater weight of the evidence. These four elements are:

Decedent’s susceptibility to undue influence;
Opportunity to exert such influence and effect the wrongful purpose;
A disposition to do so for an improper purpose; and
A result showing the effects of such influence.

In re Estate of Metz, 78 S.D. 212, 221, 100 N.W.2d 393, 398 (1960):

Susceptibility to influence does not mean mental or testamentary incapacity. In fact, the application of undue influence presupposes mental incompetency.

In re Estate of Borsch, 353 N.W.2d 346, 349 (S.D. 1984):

When considering whether an individual is susceptible to undue influence, evidence of physical and mental weakness is always material. Obviously, an aged and infirm person with impaired mental faculties would be more susceptible to influence than a mentally alert younger person in good health (citing Metz).

A disposition to unduly influence for an improper purpose is evident from persistent efforts to gain control and possession of a testator’s property (citing Metz).

In re: Estate of Dokken, 2000 S.D. 9, 604 N.W.2d 487, 495:

A presumption of undue influence arises when there is a confidential relationship between the testator and a beneficiary who actively participates in preparation and execution of the will and unduly profits therefrom. The presumption shifts the burden to the beneficiary to show they took no unfair advantage of the decedent. However, the ultimate burden remains on the contestant to prove the elements of undue influence by a preponderance of the evidence.

The beneficiary’s burden arising from the presumption is referred to as “the burden of going forward with the evidence.” This burden differs from the ultimate burden of persuasion.

McKiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W. 445, 447 (1941):

The burden to rebut a presumption disappears when evidence is introduced from which facts may be found.

Black v. Gardner, 320 N.W.2d 153, 159 (S.D. 1982):

The presumption of undue influence can be rebutted by showing that the one allegedly overpersuaded had independent advice that was neither incompetent nor perfunctory.

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