#24610-rev&rem-MYREN, Circuit Judge 

2008 SD 46

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN THE MATTER OF THE ESTATE OF 

M. ARDETH SERBOUSEK, 

Deceased. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

HUGHES COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE LORI S. WILBUR 

Judge 

* * * * 

AL ARENDT of 

Arendt Law Office Attorney for appellants 

Pierre, South Dakota Pamela Faz & Robert Serbousek. 

CHARLES P. SCHROYER of 

Schmidt, Schroyer, Moreno, Lee 

 & Bachand, PC Attorneys for appellee 

Pierre, South Dakota Eric U. Serbousek. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 11, 2008 

 OPINION FILED 6/11/08 
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MYREN, Circuit Judge 

[¶1.] The personal representatives for the estate of M. Ardeth Serbousek 

appeal the circuit court's order denying the admission of a holographic codicil to 

Serbousek's will. We reverse and remand. 

ANALYSIS 

[¶2.] At evidentiary hearings held in April and May of 2007, the circuit 

court heard evidence regarding a holographic document created by M. Ardeth 

Serbousek (Ardeth). Because the holographic document was found in one of 

Ardeth's pillows, it has become known as the "pillow note." At the conclusion of the 

hearing, the circuit court found that the "pillow note" was handwritten by Ardeth, 

but concluded that it was not a valid codicil to Ardeth's will. In making that 

determination, the circuit court restricted its analysis to the contents of the "pillow 

note" and did not consider any extraneous circumstances. 

[¶3.] We have consistently followed a two-step analysis regarding the 

assessment of purported holographic wills. First, we determine whether the writing 

complies with the statutory requirements for a holographic will. SDCL 29A-2-502.1 

 

1. SDCL 29A-2-502 provides: 

 

(a) A will is valid as a holographic will, whether 

 or not witnessed, if the signature and 

 material portions of the document are in the 

 testator's handwriting. 

(b) A will not valid as a holographic will must 

 be: 

 (1) In writing; 

 (2) Signed by the testator or in the testator's 

 name by some other individual in the 
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Second, we analyze whether the writing was executed with testamentary intent and 

demonstrated testamentary character. Estate of Martin, 2001 SD 123, 635 NW2d 

473; Estate of Pierce, 531 NW2d 573 (SD 1995). Each case must be considered 

separately on its own facts and the decedent's intention "must be determined in the 

light of the words used in the writing, and any extraneous circumstances bearing 

upon the question of intention." In re Zech's Estate, 70 SD 622, 626, 20 NW2d 229, 

231 (1945) (emphasis added). Extraneous circumstances that are admissible to 

show intent can include oral statements of the decedent. SDCL 19-16-34. In re 

Congdon's Estate, 74 SD 306, 51 NW2d 877 (1952); Scott v. Liechti, 70 SD 89, 15 

NW2d 1 (1944). We reverse and remand because the circuit court did not consider 

the extraneous circumstances bearing upon the question of Ardeth's intention and 

incorrectly applied the clear and convincing evidence standard set forth in SDCL 

29A-2-503. 

[¶4.] The following extraneous circumstances were established by a 

preponderance of the evidence through the undisputed testimony of the numerous 

 testator's conscious presence and by the 

 testator's direction; and 

(3) Signed in the conscious presence of the 

 testator by two or more individuals who, in 

 the conscious presence of the testator, 

 witnessed either the signing of the will or the 

 testator's acknowledgment of that signature. 

(c) Intent that the document constitute the 

 testator's will can be established by extrinsic 

 evidence, including, for holographic wills, 

 portions of the document that are not in the 

 testator's handwriting. 
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witnesses. These undisputed facts were relevant to the question of whether the 

"pillow note" was created with testamentary intent and contained testamentary 

character and should have been considered by the circuit judge. 

[¶5.] In May of 2000 Ardeth executed a Last Will and Testament that had 

been prepared at her request by her attorney. In that will she left a specific parcel 

of land in Sully County (70-acre parcel) to three of her grandsons, "with hopes that 

my grandsons will continue to use said land for hunting enjoyment." In that will 

she left the remainder of her property to her seven children equally. 

[¶6.] On July 20, 2000, Ardeth executed a declaration of irrevocable family 

trust which named her seven children and their issue as beneficiaries of the trust. 

At the same time Ardeth transferred all real property that she owned into the trust, 

except the 70-acre parcel. The purpose of this trust was to shield the trust property 

in the event that Ardeth incurred significant medical or care expenses as she aged. 

[¶7.] On May 15, 2002, Ardeth created a codicil to her will. This codicil was 

written entirely in her own handwriting except for a notation on the bottom that 

read: "Witness: Patricia de Hueck Pierre SD 57501 5/15/02." This handwritten 

codicil provided that her daughter Mary Pease was not to take under the will until 

she had returned specified personal property that Ardeth believed was in her 

possession. 

[¶8.] In August 2005 Ardeth executed a typewritten codicil that had been 

prepared by an attorney at her request. This codicil altered her will by designating 

three of her children as her co-personal representatives. 
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[¶9.] In the middle of August 2005 Ardeth fell and broke her shoulder. This 

injury required medical care and hospitalization. Ardeth left the hospital and 

entered transitional care in September 2005 and then lived the remainder of her life 

with her daughter Mary Pease. 

[¶10.] During the last months of her life, Ardeth told several of her children 

that she was concerned that the 70-acre parcel had been devised in her will to only 

three of her grandchildren. She explained that her other eleven grandchildren were 

growing up and some were also becoming interested in hunting. Ardeth expressed 

similar concerns to her brother, Gerald Vrooman. Ardeth told Larry Serbousek that 

she wanted to have a change made in her will. Around the same time, Ardeth told 

her daughter Janette Byer that she wanted to change her will. Ardeth asked 

Janette to make an appointment with an attorney around Thanksgiving. Ardeth 

wanted the appointment to take place around Thanksgiving so that her other 

daughter (Colleen Sandall from Texas) could accompany her to the appointment. 

Colleen had taken Ardeth to the attorney on a prior occasion. Ardeth asked Colleen 

if she would accompany her to the attorney's office over Thanksgiving. Colleen 

agreed. 

[¶11.] Janette Byer, Larry Serbousek, and Mary Pease all testified that 

Ardeth signed her legal documents as "M. Ardeth Serbousek." Janette Byer, 

Colleen Sandall, and Pamela Faz all testified that Ardeth was of sound mind and 

capable of forming testamentary intent through the day of her death. No one 

testified to the contrary on either point. 
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[¶12.] Ardeth knew that her death was approaching. On her final day she 

met with a funeral director and made final arrangements for her funeral. She even 

went so far as to write a check to pay for the funeral. Later that same day, 

November 9, 2005, Ardeth died while at the doctor's office for a routine 

appointment. 

[¶13.] At some point prior to her death, Ardeth drafted a handwritten 

document that read: 

 Oct 20062

Please help me change will. I must make right for Dad

and all you kids and grandkids. I'm afraid time is short. I 

want 70 acres equal for all our children. Try to save for 

hunting for all interested grandkids. Thank you for 

taking good care of me. I'm sorry for not always being 

nice. I love you all. 

 Mom 

M. Ardeth Serbousek 

[¶14.] Ardeth placed that note in one of her pillows. She then placed a yellow 

"stick-it" note in a book entitled Chicken Soup for the Soul Celebrates 

Grandmothers. Ardeth's daughter Janette Byer had given her this book during her 

recuperation from the fall. This book was significant to Ardeth and Janette because 

Janette and her daughter had spent time reading the book to Ardeth. The yellow 

"stick-it" note read: "Check in my pillow." 

[¶15.] After Ardeth died, the family was advised that no probate would be 

necessary because of the trust. Because of that advice and a number of family 

 

2. The October 2006 date was obviously a clerical error by Ardeth given that the 

 trial court found that the note was in her handwriting. Infra. ¶ 18.
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health emergencies, no action was taken to initiate a probate proceeding until 

nearly a year after Ardeth's death. 

[¶16.] All of Ardeth's belongings had been gathered, but most had not been 

distributed. On October 16, 2006, Janette Byer was paging through Chicken Soup 

for the Soul Celebrates Grandmothers. On page 75 she found the yellow "stick-it" 

note that read: "Check in my pillow." Mary Pease was present when Janette found 

the note. 

[¶17.] Ardeth had two pillows at the time of her death. Colleen Sandall had 

taken one of the pillows with her to Texas. Janette Byer had kept the other pillow 

in her home in Pierre. Upon finding the "stick-it" note, Janette went and retrieved 

the pillow. She gave it to Mary Pease who discovered the "pillow note" inside. 

[¶18.] Six of Ardeth's seven children (Janette Byer, Robert Serbousek, Larry 

Serbousek, Colleen Sandall, Pamela Faz, and Mary Pease) and Ardeth's brother 

Gerald Vrooman testified that the "pillow note" was in Ardeth's handwriting. The 

only child of Ardeth that testified that it was not her handwriting was her son, 

Charles Serbousek. The circuit judge resolved this factual dispute and found that 

the "pillow note" was in Ardeth's handwriting. 

[¶19.] Charles Serbousek and his son, Eric Serbousek, were the only heirs 

that opposed the admission of the "pillow note." Each of Ardeth's children, except 

Charles, testified that they believed the "pillow note" expressed Ardeth's intention 

to change her will to leave the 70-acre parcel to all of her children for the benefit of 

all of her grandchildren. This included the parents of her other two grandsons who 

would have received a one-third interest in the 70-acre parcel under the will. Those 
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two grandsons did not object to the admission of the "pillow note," even though it 

effectively eliminated their ownership interest in the 70-acre parcel. 

CONCLUSION 

[¶20.] Ardeth's "pillow note" is entirely written in her handwriting and is 

signed. It fulfills the formality requirements for a holographic will. Estate of 

Nelson, 250 NW2d 286, 287 (SD 1977). Ardeth's testamentary intent and the 

testamentary character of the document are established by the document and the 

extraneous circumstances. 

[¶21.] During the final weeks of her life Ardeth spoke to several of her 

children and her brother and repeatedly expressed her intention to change her will. 

She arranged to have an appointment scheduled to meet with an attorney so that 

she could change her will. Ardeth had previously created a holographic codicil to 

her will. Ardeth knew that death was rapidly approaching. Ardeth hoped and 

intended to meet with an attorney to change her will. As a precaution, Ardeth 

handwrote the "pillow note" to accomplish her intentions in case she died before she 

was able to meet with the attorney. Ardeth's testamentary intent is established by 

her expressed intention to change her will, by her request in the "pillow note" for 

help in changing her will, and by her acknowledgement of her imminent death 

("time is short)." It is further established by the fact that she used the same 

signature she used to sign her legal documents. 

[¶22.] The "pillow note" alters one paragraph of Ardeth's Will. Consequently, 

it can and should be read in conjunction with and in relation to that will. When 

read in that context, there can be no doubt about which seventy acres Ardeth was 
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addressing. Although her note is brief, when it is read in the light of her 

contemporaneous conversations about her concerns, it is clear that she intended to 

change her will so that the seventy-acre parcel would be shared equally among her 

children with the hope that all of her grandchildren could enjoy hunting on the 

land. 

[¶23.] The circuit court's order is reversed and the case is remanded with 

instructions that the "pillow note" be admitted into probate and interpreted to 

devise the 70-acre parcel to Ardeth's seven children equally. 

[¶24.] Reversed and remanded. 

[¶25.] GILBERTSON, Chief Justice, SABERS, KONENKAMP and 

MEIERHENRY, Justices, concur. 

[¶26.] MYREN, Circuit Judge, for ZINTER, Justice, disqualified.