In re Estate of Tank, #28955

• Court: Supreme Court of South Dakota
• Writing for the Court: JENSEN, Justice
• Citation: 938 N.W.2d 449
• Parties: In the MATTER OF the ESTATE OF Russell O. TANK, Deceased.
• Docket Number: #28955
• Decision Date: 22 January 2020

938 N.W.2d 449

In the MATTER OF the ESTATE OF Russell O. TANK, Deceased.

#28955

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS SEPTEMBER 30, 2019
OPINION FILED January 22, 2020

DANIEL K. BRENDTRO, ROBERT D. TRZYNKA of Brendtro Law Firm, Prof. LLC, Sioux Falls, South Dakota, Attorneys for appellants Arlo Tank, Renald Tank, Sherri Castro, and Gina Ellingson.

REED RASMUSSEN of Siegel, Barnett & Schutz, LLP, Aberdeen, South Dakota, Attorneys for appellee Jason Bender.

JENSEN, Justice

¶1.] Russell Tank farmed in the Britton area most of his life and accumulated a sizeable estate. He died on May 25, 2016, at the age of 84. Russell’s last will and testament, executed on December 19, 2012, was offered for probate on June 6, 2016. The will named Russell’s neighbor and long-time farm tenant, Jason Bender, as his sole heir and specifically disinherited Russell’s four adult children: Arlo Tank, Renald (Renny) Tank, Sherri Tank, and Regina (Gina) Ellingson (Children). Children filed a petition challenging the will on the grounds of lack of testamentary capacity, insane delusions, and undue influence. Following discovery, Bender filed a motion for summary judgment on Children’s claims. The circuit court granted Bender’s motion and entered an order dismissing the petition. Children appeal. We affirm in part and reverse in part.

Facts and Procedural History

[¶2.] After returning from serving in the U.S. Army in the 1950s, Russell married Harriet. Children were born during the marriage. Russell and Harriet separated in 1971 and divorced in 1974. Children were all under the age of ten at the time of the separation. Following the separation and divorce, Renny, Sherri, and Gina lived with Harriet, while Arlo lived with Russell. Children spent some time with Russell on the weekends. In his teen years, Renny began living with Russell and assisting on the farm.

[¶3.] Despite efforts to connect with their father while growing up, Children did not develop an emotional bond with him. Each of them explained that Russell never showed them love or affection and seemed disinterested in them and their activities. Children described how Russell stared off in the distance when they were around, never made eye contact with them, and rarely talked with them. They asserted Russell’s only interests were working and restoring vintage vehicles.

[¶4.] Arlo farmed and lived with Russell until 1985, when Russell, for unknown reasons, abruptly told Arlo to leave. Arlo claimed he was forced to leave so quickly that he was unable to gather his possessions. He subsequently sued and was awarded a $40,000 judgment against Russell. Arlo continued to live in the area, but the two hardly spoke after 1986.

[¶5.] Renny lived and farmed with his father until 2001, when Russell asked Renny to leave the farm. An acquaintance attempted to intervene, but Russell was unwilling to change his mind. Much like Arlo, Russell’s reasons for asking Renny to leave are unknown. Renny moved a short distance from Russell, but the two saw each other only occasionally.

[¶6.] Gina and Sherri moved from the Britton area after high school. Both visited the area over the years, but rarely saw their father. They each sent Russell letters, cards, and invitations to special occasions,

[938 N.W.2d 453

but he never responded. Gina testified that she had little contact with Russell after 1979, and estimated that she had not spoken to her father since 1993. Sherri visited her father from time to time, but rarely saw Russell after 2005.

¶7.] Bender first met Russell while growing up in the Britton area through his father’s acquaintance with Russell. In the late 1990s, Russell, Bender, Boyd Hagenson, and others began regularly playing cards together. In 2002, Russell leased his farmland to Bender for a cash rent of $50 per acre. Bender acknowledged the rental rate was significantly less than market rent, but claimed it was the amount Russell requested. Bender also explained that he expended extra time and money to address weed problems in the first few years of farming the land. At the time, Russell had not grown a crop on the land for an entire year. The rental rate never changed in the fifteen years before Russell’s death. Bender testified he mentioned to Russell more than once that the rent was too low, but claimed Russell would say it was fine and say that Bender could help him out around the farm.

[¶8.] Bender assisted Russell more and more over the years. Bender took Russell to see Russell’s army friend several times in Ohio and drove Russell to visit the gravesite after Russell’s friend passed away. In 2009, Russell had attorney Tom Sannes draft a power of attorney, naming Bender as attorney-in-fact. Later, Russell added Bender as a signatory on his bank account and gave Bender a large sum of cash to hold for Russell’s safekeeping. Russell had also buried cash at different locations around the farm. He later told Bender where this money was located, and Bender created a map showing the locations. In 2015, Bender arranged for Russell to be placed in a nursing home after Russell was unable to care for himself. At this time, Bender dug up the cash Russell had buried and testified that he placed the money in a safe at his home.¹

[¶9.] Russell prepared at least three wills during his lifetime. The first identified will was prepared by attorney Tom Sannes in 2001. Russell told Sannes he wanted to give nearly everything to his daughter Sherri and disinherit his other three children. Sannes asked a local physician to perform a competency exam before drafting the will. The physician examined Russell and sent a letter to Sannes concluding that Russell was mentally competent. The 2001 will executed by Russell gave all of Russell’s property to his daughter Sherri, except for a few vintage vehicles given to Russell’s friends. Sherri was also named as Russell’s personal representative. The other three children were specifically disinherited.

[¶10.] Russell executed a second will in 2004. At this time, Russell told Sannes that he wanted to remove Sherri as a beneficiary and name Bender instead. Sannes had no impression that Bender encouraged or was involved in Russell’s decision to change his will. Except for a few vehicles given to other friends, the 2004 will named Bender as Russell’s beneficiary and personal representative. Sherri and the other three children were specifically disinherited in the 2004 will.

[¶11.] Sannes retained memos of each of his meetings with Russell showing that Russell expressed an understanding of his heirs, his property, and testamentary intentions. Sannes found Russell to be "decisive and able to clearly express his wishes" in each meeting. Sannes believed Russell was competent and "fully understood" what he was doing when he executed the

[938 N.W.2d 454

2001 and 2004 wills and the power of attorney.

¶12.] Russell made a third will in 2012, prepared by attorney Kari Bartling. Russell was 80 at the time. The will revoked all prior wills and named Bender as Russell’s sole heir and personal representative. Children were again specifically disinherited in the 2012 will.

[¶13.] Bartling prepared a contemporaneous memorandum reflecting her discussions with Russell prior to drafting the 2012 will. Bartling’s notes reflect that Russell described his assets and answered questions about his background, Children, and other family members. Russell told Bartling that he did not want to leave anything to Children because he had already helped them out and no longer had contact with any of them. Russell stated that he did not know where his two daughters lived and had hardly seen them since the divorce. He also said his two sons live close to him but described a lack of any contact with them. Russell also described some of the things Bender had done for him and told Bartling that he was very fond of Bender and could not think of a better person to receive his assets. Bartling concluded that "Russell was very well aware of what he owned," had a "good head on his shoulders as far as business," and "appeared to be very intelligent." Bartling asked Russell if Bender had talked to him about changing his will. Russell said "no" and stated that Bender did not know he was doing this.

[¶14.] After Russell’s death, Bender commenced an informal probate of Russell’s 2012 will. Arlo and Renny filed a petition challenging the will. Sherri and Gina joined in an amended petition shortly thereafter. The amended petition alleged Russell lacked testamentary capacity and that the 2012 will was a product of an insane delusion and undue influence.

[¶15.] Children retained Dr. Rodney Swenson, a psychologist, as an expert witness concerning Russell’s competency and mental health. Dr. Swenson did not personally examine Russell, and his opinions were based on medical records, depositions, and statements from Children and others. Dr. Swenson concluded that Russell developed a chronic delusional disorder early in his life that affected his ability to form and maintain close relationships with Children and others. Dr. Swenson also concluded that Russell started developing vascular dementia in his later years. Dr. Swenson cited Russell’s distrust of societal institutions, limited topics of conversation, obsession with keeping loaded guns hidden around him, burying large sums of money, and ignoring Children as examples of the delusional disorder affecting Russell’s daily life activities. As to the 2012 will, Dr. Swenson opined that: (1) Russell lacked...