Where there's a will there's a way: an examination of Estate of Kesling, In re and the South Dakota Supreme Court's application of the plain meaning rule.

• Author: Dillman, Jarell A.

In the Matter of the Estate of Kesling provided the South Dakota Supreme Court the opportunity to decide whether a holographic will clearly expressed the testator's intent regarding the disposition of his property. In reaching its decision, the Supreme Court grappled with the question of whether the will's language was reasonably capable of being understood in more than one sense." In a 3-2 decision, the Court narrowly affirmed the trial court's determination that the will's language clearly described the testator's intent and that evidence outside of the writing was not necessary in its analysis. The majority reasoned that the testator's intent was clearly expressed within the four-comers of the will and that it was bound by the plain language of the writing. The majority ultimately found that the testator did not give his wife a fee simple absolute in his personal and real property, but rather a life estate, with his three daughters as remaindermen. In reaching its conclusion, however, the majority misapplied the plain meaning rule because it did not give all of the words in the will their usual and ordinary meaning. Instead, the Court gave preferential effect to the word "shall" in the latter half of a crucial sentence and overly relied on grammatical syntax. Furthermore, the Court essentially utilized the presumption against disinheritance before application of this presumption was appropriate. The Court should have reversed and remanded the trial court's determination and permitted admission of additional evidence to clarify the will's ambiguity. By doing so the Court would have given the trial court the ability to resolve any doubt as to the testator's intent, honored the high value placed on testamentary freedom, and reinforced the traditional process of interpreting ambiguous language in a will.

1. INTRODUCTION

   The transfer of property at death is a universal and ancient concept. (1) Historically, most cultures have allowed dying individuals to allocate their property to others. (2) In early societal dispensations, a transfer of property from one person to another was done in accordance with specific rules and rituals. (3) Over time, these customs evolved into established laws, which have become the foundations of testamentary freedom--and its limitations--in modern society. (4)

   A will is a legal document that directs the distribution of an individual's estate after death. (5) The primary purpose of a will is to provide individuals the testamentary freedom to control the disposition of their property and to avoid the application of standardized distribution plans set forth by state intestacy laws. (6) Since testamentary freedom plays an important role in the use of wills, testators are given almost limitless power concerning how to dispose of their property. (7) Through the execution of a will, a testator may accomplish many goals including: devising property, identifying beneficiaries, designation of a personal representative, and--in some jurisdictions--limiting or disinheriting heirs from receiving a share of the testator's property. (8)

   Generally, the provisions in a will are considered mandatory directives that must be followed if possible. (9) Sometimes language in a will is precatory in nature. (10) Precatory expressions are designed to advise or persuade a donee to confer some kind of benefit, often times property, to another person or entity. (11) Such recommendations or wishes are not mandatory, and the ultimate decision to follow the instruction is left to the discretion of the donee. (12)

   In construing a will, courts are often challenged with interpreting whether certain words or clauses constitute mandatory or precatory language. (13) To answer this question, courts look to the intent of the testator. (14) The traditional rule that is still utilized by virtually all jurisdictions for ascertaining a testator's intent is the plain meaning rule. (15) This rule specifies that the meaning of the writing must be deduced solely from the language contained in the writing itself, unless such language is determined by the court to be ambiguous. (16) When language is ambiguous, circumstances surrounding the execution of the will, as well and other extrinsic evidence, is admissible to clarify the ambiguity. (17)

   This note focuses on the South Dakota Supreme Court's holding in In re Estate of Kesling (18) ("Kesling") and the majority's application of the plain meaning rule. (19) Following the facts and procedure of the case, the background law surrounding the issues in Kesling will be examined. (20) The rules of will interpretation will be explored first, specifically the plain meaning rule and the problem of ambiguity. (21) A discussion of circumstantial and other extrinsic evidence will then be discussed as well as the rules of will construction. (22) The background will conclude with a discussion on precatory language. (23) The analysis provides an explanation of the majority's application of the plain meaning rule, specifically addressing three areas: the Court's error in giving preference to the word "shall", its overreliance on grammatical syntax, and its conclusory determination that the will's language did not posit an intent by James to possibly disinherit his daughters. (24) This note concludes that the South Dakota Supreme Court should have reversed the trial court's decision and permitted the admission of evidence to clarify whether the will gave the testator's widow an estate in fee simple or only a life estate. (25)

2. FACTS AND PROCEDURE

   On April 2, 2008, James W. Kesling executed a holographic will. (26) The entire holographic reads as follows:

   Last Will and Testament of James W. Kesling Dated this 2nd Day of April 2008 I James W. Kesling do hereby will all my personal property and personal belongings to Sandra L. Kesling of Mobridge who is my wife. This includes my land in Dewey, Corson and Walworth Counties. I also will my Contract For Deed with Faron Schweitzer, Coffy Enright and Richard Enright. It is my wish that my Estate be Administrated [begin strikethrough]my[end strikethrough] By my daughters and and [sic] upon Sandra L. Kesling [sic] death the Estate shall be divided Equally between my 3 daughters (over) I James W. Kesling being of Sound Mind and body do Hereby Sign this Document. (27) James died three months later on July 4, 2008. (28) His wife, Sandra Kesling, and three daughters from a previous marriage, survived him. (29) Sandra and James were married for twenty-nine years and had no children together. (30) Following James' death, his will was submitted to probate for admittance and for appointment of a personal representative of his estate. (31) The court admitted the will on September 4, 2012 and appointed James' daughters as personal representatives. (32)

   1. CIRCUIT COURT DECISION

      The Estate and Sandra disagreed on the meaning of James' will. (33) On the one hand, the Estate believed that James' will clearly expressed his intention to devise to Sandra a life estate in both his personal and real property and that upon her death the property would pass to James' three daughters. (34) Sandra, on the other hand, believed that the will was ambiguous because it was susceptible to three reasonable, but different, interpretations. (35) In addition to the Estate's interpretation, Sandra believed that the language of the will could also be interpreted as giving her all of James' property in fee simple with a "wish"--not a requirement--that upon her death she would gift the property to his daughters. (36) In the alternative, Sandra contended that the will's language may also have devised her a fee simple, but provided that James' daughters inherit the property in the event that Sandra predeceased James. (37) Consequently, both parties petitioned the circuit court to construe the will. (38) The Estate raised a motion for summary judgment. (39)

      The circuit court reviewed the entire writing and determined that it possessed the requisite characteristics to constitute a holographic will. (40) The court then examined the individual sentences of the will and found that James intent was clearly expressed within the four-comers of the document and that the Estate's interpretation was correct. (41) The circuit court determined the language of the will was unambiguous, therefore the court did not consider circumstances surrounding the will's execution or extrinsic evidence. (42) Therefore, the court granted the Estate's motion for summary judgment. (43)

   2. ARGUMENTS TO THE SUPREME COURT AND ITS DECISION

      Sandra appealed the circuit court's decision asserting that the court erred in granting summary judgment because the language in the fourth sentence of James' will was "reasonably capable of being understood in more than one sense." (44) Sandra emphasized the permissive nature of the word "wish" and its susceptibility of being interpreted as either mandatory or advisory language. (45) Sandra asserted that the admittance of evidence concerning the surrounding circumstances of the will's execution was necessary to help ascertain whether James meant the word "wish" to be mandatory or precatory instruction. (46)

      The Estate maintained that the only reasonable interpretation of James' will was that Sandra received only a life estate with James' three daughters as remaindermen. (47) To support its argument, the Estate relied on James use of the words "upon" and "shall" in the later part of the will's fourth sentence. (48) The Estate purported this language constituted words of limitation which qualified Sandra's interest from a fee simple to a life estate. (49)

      The Estate further asserted that Sandra's interpretations of the will were unreasonable because the document's language did not expressly disinherit James' daughters. (50) Specifically, the language expressed a desire to name the daughters as the estate's personal representatives. (51) The Estate argued that this fact supported...