There is a newer version of the South Dakota Codified Laws
2006 South Dakota Code - 29A-3-412 — Formal testacy proceedings--Effect of order--Vacation.
29A-3-412. Formal testacy proceedings--Effect of order--Vacation. Subject to appeal and subject to vacation as provided in this section or by other law, a formal testacy order under §§ 29A- 3-409 to 29A-3-411, inclusive, including an order that the decedent left no valid will and determining the heirs, is final as to all persons who were properly notified of the proceeding, either by personal service or publication, with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
(1) The court shall entertain a petition
for modification or vacation of its order and probate of another
will of the decedent if the proponents of the later-offered will
were given no notice or only publication notice of the earlier
proceeding, except that no such petition may be entertained if it
is shown that the proponents (i) were aware of the earlier
proceeding and (ii) were aware of the existence of the
later-offered will at the time of the earlier
proceeding;
(2) If intestacy of all or part of the
estate has been ordered, the determination of heirs of the decedent
may be reconsidered if it is shown that one or more persons were
omitted from the determination and it is also shown that (i) the
persons were unaware of their relationship to the decedent, (ii)
were unaware of the death, or (iii) were given no notice of the
earlier proceeding, except by publication;
(3) A petition for vacation under either
(1) or (2) above shall be filed prior to the earlier of the
following time limits:
(i) If a personal representative has been
appointed for the estate, the time of entry of any order approving
final distribution of the estate, or, if the estate is closed by
statement, six months after the filing of the closing
statement;
(ii) Whether or not a personal
representative has been appointed for the estate of the decedent,
the time prescribed by § 29A-3-108 when it is no longer
possible to initiate an original proceeding to probate a will of
the decedent;
(iii) Twelve months after the entry of the
order sought to be vacated;
(4) The order originally rendered in the
testacy proceeding may be modified or vacated, if appropriate under
the circumstances, by the order of probate of the later-offered
will or the order redetermining heirs;
(5) The finding of the fact of death is
conclusive as to an alleged decedent only if notice of the hearing
on the petition in the formal testacy proceeding was sent by
registered or certified mail addressed to the alleged decedent at
the alleged decedent's last known address and the court finds that
a reasonably diligent search as required by
§ 29A-3-403(c) was made. If the alleged decedent is not
dead, even if notice was sent and a reasonably diligent search was
made, the alleged decedent may recover estate assets in the hands
of the personal representative. In addition to any remedies
available to the alleged decedent by reason of any fraud or
intentional wrongdoing, the alleged decedent may recover any estate
or its proceeds from distributees that is in their hands, or the
value of distributions received by them, to the extent that any
recovery from distributees is equitable in view of all of the
circumstances.
Source: SL 1994, ch 232, § 3-412; SL 1995, ch 167, § 115.
Source: SL 1994, ch 232, § 3-412; SL 1995, ch 167, § 115.
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