#28885-r-PJD

2020 S.D. 31

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

RUSSELL I. CARVER REVOCABLE TRUST,

U/T/A DATED OCTOBER 11, 2001, AS AMENDED.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBERT GUSINSKY

Judge

* * * *

MICHAEL M. HICKEY

JOHN H. RAFORTH of

Bangs, McCullen, Butler,

 Foye & Simmons, LLP

Rapid City, South Dakota Attorneys for appellants 

Kenneth E. McFarland and 

Kelli J. McFarland.

TIMOTHY W. BILLION

BRENDAN V. JOHNSON

DENISE S. RAHNE of

Robins Kaplan, LLP

Sioux Falls, South Dakota Attorneys for appellee Edwin 

Jenkins, Trustee.

* * * *

ARGUED

NOVEMBER 5, 2019

OPINION FILED 06/03/20
#28885

-1-

DEVANEY, Justice

[¶1.] After the settlor of a trust died, a petition was filed in circuit court 

requesting judicial supervision of the trust under SDCL 21-22-9. The petitioners 

also requested that the court declare the validity of the original trust and its first 

amendment, asserting that subsequent amendments to the trust were invalid. A 

successor trustee objected and filed a motion for judgment on the pleadings, arguing 

that a challenge to the validity of a trust could not be asserted in a petition for 

judicial supervision, but rather could only be commenced via service of summons. 

The circuit court granted the successor trustee’s motion and summarily dismissed 

the petitioners’ request that the circuit court declare the original trust and its first 

amendment valid. The petitioners appeal. We reverse and remand.

Factual and Procedural Background

[¶2.] Russell Carver created a revocable trust on October 11, 2001. He also 

executed a power of attorney. In both documents, Russell named his wife, Norma, 

as his agent in fact and his first successor trustee. Russell named his stepson-inlaw, Kenneth McFarland (husband of Russell’s stepdaughter Kelli), as a successor 

trustee and an agent in fact in the event of Norma’s death. Under the terms of the 

trust, Russell left his estate to Norma. If Norma predeceased him, Russell’s estate 

would be distributed in equal shares to his children, his stepchildren, and the 

surviving children of his stepson Wayne Courtney. At that time, Russell’s living 

biological children included Carolyn Jenkins, James Carver, Tom Carver, and Kit 

Carver. His living stepchildren included Sandra Pool, Laura Larson, and Kelli 

McFarland. Wayne Courtney, also a stepchild, had predeceased Russell.
#28885

-2-

[¶3.] On May 16, 2012, Norma died, and in August 2012, Russell amended 

his trust, naming Kenneth as his first successor trustee. He further amended the 

trust to provide that his estate would be distributed “in equal shares to [his] living 

children and stepchildren, the issue of any deceased child to take the share of their 

parent by right of representation.”1 Approximately four years later, on February 9, 

2016, Russell again amended his trust. He revoked the first amendment and 

named Edwin Jenkins (replacing Kenneth) as his first successor trustee. Edwin is 

Carolyn’s husband and Russell’s son-in-law.

[¶4.] The second amendment also provided that only Russell’s biological 

children would have the authority, along with a concurring opinion of a licensed 

psychologist, to determine whether Russell is at any time incapacitated or has an 

impaired ability to transact ordinary business. This amendment came after thenexisting successor trustee, Kenneth, had arranged for Russell to be examined by two 

medical professionals. Russell was 93 years old at the time, and each professional 

opined that Russell was unable and incompetent to manage his own affairs. In 

response, Tom Carver (Russell’s biological son) had Russell examined by a different 

medical professional who opined that Russell had the mental capacity to make his 

own decisions.

[¶5.] Also in February 2016, Russell executed a new power of attorney. He 

named his biological son Tom as his agent for healthcare decisions and Edwin as his 

agent for financial matters. In May 2016, a lawsuit seeking declaratory relief was 

filed, naming Russell as the plaintiff. The original complaint requested a 

 

1. By that time James Carver was deceased and had no children.
#28885

-3-

declaration that Russell has the capacity to make his own financial and healthcare 

decisions and manage his affairs, and that he is competent to act upon his own 

behalf. An amended complaint requested, among other things, that the court 

recognize as valid Russell’s acts of revoking the 2001 Power of Attorney and

executing the 2016 Power of Attorney.2

[¶6.] Russell amended his trust two more times, once on June 29, 2016 and 

again on January 23, 2017. The third amendment disinherited his stepdaughter 

Kelli (Kenneth’s wife) and indicated that he omitted Kelli because he believed she 

and Kenneth had refused to follow his wishes in managing his affairs. The fourth 

amendment disinherited all of his stepchildren (and their children) and directed 

that Russell’s estate be distributed equally to Tom Carver, Carolyn Jenkins, and by 

right of representation to June Carver (Kit’s wife).3

[¶7.] Russell died on March 16, 2017. Within one year of his death, Kelli 

and Kenneth (the McFarlands) filed a petition with the circuit court under SDCL 

chapter 21-22 to assume judicial supervision of the 2012 Amended Russell I. Carver

Revocable Trust. They attached an inventory exhibit showing a description of the 

trust property, along with an exhibit listing the names, residences, and last known 

addresses of all persons interested in the 2012 amended trust. In addition to their 

request that the court assume supervision, the McFarlands requested that the court 

determine the validity of the 2012 amended trust. They specifically noted that the 

 

2. The circuit court dismissed this suit without prejudice in November 2019 in 

response to a motion to dismiss by Russell’s counsel.

3. Kit passed away between the first and second amendment.
#28885

-4-

trust had been amended three times after 2012, but alleged the invalidity of those 

amendments.

[¶8.] On March 30, 2018, the circuit court entered an order scheduling a 

hearing on the McFarlands’ petition. Although Edwin was not listed on the notice 

of hearing, he filed an objection to the petition.4 While he agreed that it would be 

appropriate for the court to assume judicial supervision of the trust, he disagreed 

that Russell’s estate should be distributed under the terms of the 2001 trust and the 

2012 first amendment. He instead requested that the trust be administered and 

distributed under its terms as they existed in 2017 (after the second, third, and 

fourth amendments) prior to Russell’s death. Edwin also requested that the court 

deny the McFarlands’ petition to the extent it seeks to challenge the validity of any 

trust document.

[¶9.] Before a hearing could be held on the McFarlands’ petition and 

Edwin’s objection, Edwin filed a motion for judgment on the pleadings. He argued 

that the McFarlands’ trust challenge was time barred because they failed to timely 

commence a judicial proceeding to challenge the validity of the trust as required by 

SDCL 55-4-57(a)(1). Under SDCL 55-4-57(a)(1), a judicial proceeding to challenge 

the validity of a trust must be commenced no later than one year after the settlor’s 

death.

[¶10.] After a hearing, the circuit court issued an amended order granting 

Edwin’s motion. The court noted that the McFarlands’ petition included a request 

for court supervision of Russell’s trust as well as a claim for declaratory relief 

 

4. Edwin’s wife, Carolyn Jenkins, was listed on the notice of hearing.
#28885

-5-

challenging the validity of the various trust amendments. In regard to the request 

for declaratory relief, the court interpreted SDCL 55-4-57(a)(1) in conjunction with 

SDCL 21-24-7 to mean that a petition for judicial supervision is not sufficient to 

commence a challenge to the validity of a trust; rather, the McFarlands were 

required to commence their trust challenge by service of summons within one year 

after Russell’s death. Thus, the court dismissed the portion of the McFarlands’ 

petition requesting declaratory relief.

[¶11.] The McFarlands appeal, asserting the circuit court erred when it 

concluded that their trust challenge was time barred under SDCL 55-4-57(a)(1). 

They alternatively assert that if their trust challenge is time barred, SDCL 55-4-57 

violates their constitutional right to equal protection. Because of our resolution on 

the first issue, we need not address the McFarlands’ alternative argument.

Standard of Review

[¶12.] The dismissal of the McFarlands’ petition was based upon the circuit 

court’s interpretation of statutes relating to trusts and declaratory relief. We 

review questions of statutory interpretation de novo. In re the Admin. of the Lee R. 

Wintersteen Revocable Tr. Agreement, 2018 S.D. 12, ¶ 9 n.5, 907 N.W.2d 785, 789 

n.5.

Analysis and Decision

I. Whether trust challenges may be initiated under SDCL chapter 21-22

[¶13.] The parties do not dispute that under SDCL 55-4-57(a) and this 

Court’s decision in Wintersteen, a claim challenging the validity of a trust must be 

commenced within the time prescribed by SDCL 55-4-57(a), regardless of whether a 
#28885

-6-

trust is under court supervision. See 2018 S.D. 12, ¶ 19, 907 N.W.2d at 791. The 

parties, however, disagree as to whether Wintersteen also held that a claim 

challenging the validity of a trust may be included in a petition for judicial 

supervision under SDCL chapter 21-22.

[¶14.] Edwin contends that a challenge to the validity of a trust “is not 

properly the subject of a petition for administrative supervision” under SDCL 21-22-

9 because that statute pertains to trust administration, and in Wintersteen, we 

indicated that the beneficiary’s challenge to a trust amendment did “not involve 

matters relevant to the management and disposal of the Trust as envisioned by 

SDCL 21-22-13.” See 2018 S.D. 12, ¶ 15, 907 N.W.2d at 790. Edwin, however, 

reads the language in Wintersteen too broadly.

[¶15.] In Wintersteen, the trustor’s widow, after discovering that she had been 

removed as a beneficiary in an amendment to the trust, initially sought only 

supervision of the trust pursuant to SDCL 21-22-9. But then after the court had 

assumed supervision, she sought (more than one year after the settlor’s death) to 

amend her initial petition under SDCL 21-22-13 to assert a challenge to the validity 

of the trust amendment. Our decision in Wintersteen ultimately hinged on whether 

SDCL 21-22-13 or SDCL 55-4-57(a) controlled the timeliness of the trust challenge 

filed by the beneficiary. There was no dispute that the petitioner had failed to 

assert her trust challenge within one year after the settlor’s death as required by 

SDCL 55-4-57(a)(1). The petitioner, however, argued that her challenge could be 

filed anytime under SDCL 21-22-13. We disagreed, concluding that SDCL 55-4-
#28885

-7-

57(a) controlled as the more specific statute governing the timeframe for 

challenging the validity of a trust or its amendments. Id. ¶ 15.

[¶16.] Importantly, we specifically noted that “[o]ur holding” in Wintersteen 

“does not preclude a litigant from bringing a claim challenging the validity of a 

trust or amendment within a petition seeking court supervision[,]” so long as the 

claim is timely brought under SDCL 55-4-57(a). Id. ¶ 16 n.8. Lest there be any 

confusion stemming from our discussion in Wintersteen, we now clarify that a 

challenge to the validity of a trust may be included in a petition filed under SDCL 

chapter 21-22, so long as the trust challenge is commenced in a timely manner 

under SDCL 55-4-57(a). “When engaging in statutory interpretation, we give words 

their plain meaning and effect, and read statutes as a whole, as well as enactments 

relating to the same subject.” Citibank v. S.D. Dep’t of Revenue, 2015 S.D. 67, ¶ 12, 

868 N.W.2d 381, 387 (quoting Paul Nelson Farm v. S.D. Dep’t of Revenue, 2014 S.D. 

31, ¶ 10, 847 N.W.2d 550, 554). SDCL 21-22-9 provides that “[t]he court shall make 

such order approving the relief requested by the petition, give such directions to a 

fiduciary as the court shall determine, or resolve objections filed by an interested 

party pursuant to § 21-22-16.” In resolving objections, SDCL 21-22-16 authorizes 

the court to “enter any order it deems appropriate, which order may: (1) Resolve any 

issues the court deems proper if all matters included in the petition, which are not 

objected to at the initial hearing, are approved; (2) Determine the scope of discovery; 

and (3) Set a schedule for further proceedings for the prompt resolution of the 

matter.”
#28885

-8-

[¶17.] Allowing trust challenges to be determined within a petition for court 

supervision is not a novel concept. In an analogous scenario, when an interested 

party petitions for supervised administration of a will under SDCL 29A-3-502 and 

the testacy of the decedent has not been previously adjudicated, the petitioner is 

required to include within the petition “the matters required of a petition in a 

formal testacy proceeding[,]” and the court is required to adjudicate such matters 

“even though the request for supervised administration may be denied.” Such 

matters include whether the petitioner is aware of any other unrevoked 

testamentary instruments, and if so, why they are not being offered for probate. 

See SDCL 29A-3-402; SDCL 29A-3-301(a)(2)(ii), (iii).5

[¶18.] Edwin nonetheless contends that to allow the commencement of a trust 

challenge via the filing of a petition under chapter 21-22 would be inconsistent with 

the public policy recognized by this Court, namely that SDCL 55-4-57 is intended 

“to facilitate the expeditious administration of trusts by limiting the time period to 

commence a trust contest” following a settlor’s death. See In re Elizabeth A. Briggs 

Revocable Living Tr., 2017 S.D. 40, ¶ 13, 898 N.W.2d 465, 470. He further claims 

that to allow the McFarlands to commence a trust challenge in a petition filed 

 

5. SDCL chapter 21-24 also supports that a request to declare a trust valid or 

invalid may be made in a petition for judicial supervision under chapter 21-

22. Under SDCL 21-24-1, “[c]ourts of record within their respective 

jurisdictions shall have power to declare rights, status, and other legal 

relations whether or not further relief is or could be claimed. No action or 

proceeding shall be open to objection on the ground that a declaratory 

judgment or decree is prayed for.” Further, SDCL 21-24-5 provides that 

“[a]ny person interested . . . may have a declaration of rights or legal 

relations in respect thereto: . . . (3) [t]o determine any question arising in the 

administration of the estate or trust, including questions of construction of 

wills and other writings.”
#28885

-9-

under SDCL 21-22-9 “would effectively allow parties to challenge a trust at any 

time[.]” We disagree.

[¶19.] Allowing a circuit court to consider a timely asserted challenge to the 

validity of a trust in a petition for judicial administration does not subvert the 

expeditious administration of a trust. Moreover, a trust challenge cannot occur at 

any time. Wintersteen held in no uncertain terms that a trust challenge must be 

filed within the statutory periods set forth in SDCL 55-4-57(a). See 2018 S.D. 12, ¶ 

16, 907 N.W.2d at 791. This time limitation applies regardless of the fact that the 

challenge was commenced via a petition filed pursuant to SDCL chapter 21-22.

II. What is required to commence a judicial proceeding under SDCL 55-4-

57(a)

[¶20.] Under SDCL 55-4-57(a)(1), a “judicial proceeding” to contest the 

validity of a trust must be “commenced” within “[o]ne year after the settlor’s 

death[.]” The McFarlands argue that their petition, filed under SDCL 21-22-9 

(which specifically included a challenge to the validity of the later trust 

amendments) in accord with the procedures set forth in SDCL chapter 21-22,

properly commenced a judicial proceeding as contemplated by SDCL 55-4-57(a)(1). 

Edwin, in response, contends that the McFarlands’ trust challenge is in fact a civil 

action for declaratory relief; therefore, “the special procedures in chapter 21-22 for 

administrative petitions [did] not relieve the McFarlands of their obligation to 

comply with the ordinary rules of civil procedure.”

[¶21.] While SDCL 55-4-57(a) requires that a proceeding challenging the 

validity of a trust be timely commenced, nothing in SDCL 55-4-57(a) directs that a 

civil action be commenced by personal service of summons as provided in the rules 
#28885

-10-

of civil procedure. Rather, SDCL 55-4-57(a) refers more broadly to the 

commencement of a judicial proceeding. In Wintersteen, we examined the phrase 

“judicial proceeding” as contemplated in SDCL 55-4-57(a) and noted our previous 

definition:

Any proceeding wherein judicial action is invoked and taken. 

Any proceeding to obtain such remedy as the law allows. . . . A 

general term for proceedings relating to, practiced in, or 

proceeding from, a court of justice. . . . A proceeding wherein 

there are parties, who have opportunity to be heard, and 

wherein the tribunal proceeds either to a determination of facts 

upon evidence or of law upon proved or conceded facts.

2018 S.D. 12, ¶ 19, 907 N.W.2d at 791 (quoting Specialty Mills, Inc. v. Citizens State 

Bank, 1997 S.D. 7, ¶ 10, 558 N.W.2d 617, 621).

[¶22.] There are many types of judicial proceedings, and not all of them are 

commenced by personal service of summons. For example, SDCL 55-4-57(a) refers 

to several types of proceedings related to the timeframes within which a trust 

contest must be commenced. Under SDCL 55-4-57(a)(3), one can no longer contest a 

trust after receiving notice that a trust has been adjudicated as valid “as a result of 

a petition filed before the settlor’s death[.]” (Emphasis added.) See also SDCL 55-4-

57(g) (allowing any trustee to petition the court under the procedures set forth in 

chapter 21-22 for an order confirming the validity of a trust). Likewise, SDCL 55-4-

57(a)(5) refers to “[t]he last date a petition for review of a will could be filed” as one 

of the dates by which a proceeding to contest the validity of a trust must be 

commenced. (Emphasis added.) Under the Uniform Probate Code, SDCL 29A-3-

401 provides that “[a] formal testacy proceeding may be commenced by an interested 

person filing a petition[.]” (Emphasis added.) Will contests are routinely heard in 
#28885

-11-

the context of such probate proceedings. These proceedings are “commenced” by 

filing a petition offering the will for probate. See SDCL 29A-3-402 (providing the 

petition requirements of SDCL 29A-3-301); SDCL 29A-3-502 (incorporating the 

petition requirements for formal testacy proceedings if the testacy of the decedent 

has not been yet adjudicated).

[¶23.] A review of other statutes governing trusts further supports the 

proposition that the manner of commencing a judicial proceeding challenging a 

trust as contemplated by SDCL 55-4-57(a) depends on the type of judicial 

proceeding at issue. See Wintersteen, 2018 S.D. 12, ¶ 16 n.8, 907 N.W.2d at 790 n.8 

(relating that we “construe multiple statutes covering the same subject matter in 

such a way as to give effect to all of the statutes if possible”) (quoting Citibank, 2015 

S.D. 67, ¶ 19, 868 N.W.2d at 390). Relevant here, SDCL Title 55 broadly governs 

fiduciaries and trusts and SDCL chapter 21-22 sets forth the specific judicial 

remedies governing the administration of trust estates. Judicial hearings relating 

to trusts are also referenced in Title 29A (the Uniform Probate Code). See SDCL 

29A-1-311 (referring to petitions relating to the administration of trust estates 

under SDCL chapter 21-22).

[¶24.] Because nothing in SDCL 55-4-57(a) dictates the type of judicial 

proceeding a litigant must utilize to challenge the validity of a trust and because 

the commencement of a trust challenge depends on the type of proceeding at issue, 

we decline to interpret SDCL 55-4-57(a) to require that a trust challenge be 

commenced only in proceedings which are initiated by a service of summons under 

SDCL 15-2-30.
#28885

-12-

[¶25.] Edwin argues, however, that even if a petition for judicial supervision 

under SDCL chapter 21-22 is a proper vehicle for commencing a trust challenge, the 

McFarlands were nonetheless required to commence their trust challenge via 

service of summons under SDCL 15-6-3 and SDCL 15-2-30 because they also 

requested declaratory relief under SDCL chapter 21-24. Edwin focuses on the 

language in SDCL 21-22-31 providing that “[a] proceeding brought pursuant to this 

chapter is considered an action for purposes of title 15.” The McFarlands, in 

response, direct this Court to the remaining language in SDCL 21-22-31 excepting 

the rules of civil procedure—including SDCL 15-2-30 and SDCL 15-6-3—when 

SDCL chapter 21-22 specifically provides rules to the contrary or when Title 15 is 

inconsistent with the provisions within chapter 21-22.6 In their view, because 

chapter 21-22 requires the filing of a petition (not service of a summons), the filing 

of a petition under SDCL 21-22-9 commenced a judicial proceeding as contemplated 

by SDCL 55-4-57(a). We agree.

[¶26.] Here, for non-court trusts, SDCL 21-22-9 requires the filing of a 

requisite petition, and upon that petition being filed, the court is required to fix a 

time and place for hearing “as provided pursuant to this chapter . . . .” If a court is 

required to set a hearing, a proceeding has necessarily been commenced. Therefore, 

the filing of the petition is the first act or step required to commence this type of 

proceeding. See Black’s Law Dictionary 268 (11th ed. 2019) (defining 

 

6. A statute with identical language is contained within the Uniform Probate 

Code regarding the applicability of the rules of civil procedure to probate 

proceedings. See SDCL 29A-1-304 (“[u]nless specifically provided to the 

contrary in this code or unless inconsistent with its provisions, the rules of 

civil procedure . . . govern formal proceedings under this code”).
#28885

-13-

“commencement of an action” as “[t]he time at which judicial or administrative 

proceedings begin, typically with the filing of a formal complaint”). Because SDCL 

chapter 21-22 sets forth the procedure for commencing a proceeding under that 

chapter, which is different from the procedure required to commence an action 

under Title 15, the rules governing the commencement of a civil action in SDCL 15-

2-30 do not apply to the McFarlands’ trust action commenced under SDCL chapter 

21-22.7

[¶27.] Edwin offers two further arguments as to why he believes the filing of 

a petition for supervision of a non-court trust is insufficient to commence a trust 

challenge. First, Edwin claims that only proceedings brought under SDCL 21-22-6 

commence immediately by the filing of a petition because unlike a petition for 

supervision of a non-court trust under SDCL 21-22-9, “supervision by the court” for 

court trusts “shall be deemed to commence” upon the filing of the requisite papers. 

Edwin’s attempt to differentiate proceedings pertaining to court trusts and noncourt trusts is misplaced.

[¶28.] The question here is not when “supervision” commences, but rather 

when the “judicial proceeding” contemplated by SDCL 55-4-57(a) itself commences. 

Under SDCL 21-22-9, a court may ultimately decline supervision if “good cause to 

the contrary is shown.” That a court declines supervision does not, however, negate 

that a proceeding was nonetheless commenced, as the petition invokes judicial 

action. See Wintersteen, 2018 S.D. 12, ¶ 19, 907 N.W.2d at 791. In fact, it is the 

 

7. SDCL 15-6-81(a) (Appendix A) (rules of civil procedure in chapter 15-6 do not 

govern chapter 21-22 “insofar as they are inconsistent or in conflict with” the 

procedure and practice provided by these rules).
#28885

-14-

commencing of such a proceeding, by filing a petition, that then requires the court to 

fix a time and place for a hearing, of which notice must be given to the interested 

parties. See SDCL 21-22-9; SDCL 21-22-18.

[¶29.] Notably, the filing of a petition commences a will contest, which is one 

of the proceedings enumerated under SDCL 55-4-57(a). See SDCL 29A-3-401 (“A 

formal testacy proceeding may be commenced by an interested person filing a 

petition.” (Emphasis added.)). The process to commence a will contest is essentially 

identical to the procedure set forth in SDCL 21-22-9. “Upon commencement of a 

formal testacy proceeding,” SDCL 29A-3-403 requires the court to fix a time for 

hearing, of which the interested parties must be noticed as set forth in SDCL 29A-1-

401. Likewise, under SDCL 21-22-9, “[u]pon the petition being filed, the court shall 

fix a time and place for hearing thereon, unless notice and a hearing are waived in 

writing by all fiduciaries and beneficiaries, and notice shall be given as provided 

pursuant to this chapter[.]” See also SDCL 21-22-17; SDCL 21-22-18 (notice of 

hearing and service requirements).

[¶30.] Next Edwin argues that the McFarlands’ trust challenge should be 

deemed to have commenced upon the mailing of the notice to the interested parties, 

rather than at the time the petition was filed. Although the McFarlands filed a 

petition for judicial supervision on March 14, 2018, which was within the one-year 

timeframe after Russell’s death, their notice to the other interested parties was 

mailed on April 2, 2018, a date outside the one-year timeframe required by SDCL 

55-4-57(a)(1).
#28885

-15-

[¶31.] Edwin’s argument ignores the fact that it is not until after the judicial 

proceeding under SDCL chapter 21-22 has commenced that a petitioner is required 

to notify the interested parties. Notably, SDCL 21-22-17 directs that notice of all 

hearings on the petition “shall be given as provided in this chapter.” (Emphasis 

added.) Notice may be satisfied under SDCL 21-22-18 by more than one method: 

“personally, by mail, postage prepaid, addressed to each person at the last known 

post office address as shown by the records and files in the proceeding, or 

electronically in accordance with § 15-6-5(d) and applicable local rules, at least 

fourteen days prior to the hearing unless the court for good cause shown directs a 

shorter period.”8

[¶32.] As Edwin points out in his supplemental brief, “the purpose of service 

of process is twofold: first, to advise that a legal proceeding has been commenced, 

and, second, to warn those affected to appear and respond to the claim.” Spade v.

Branum, 2002 S.D. 43, ¶ 7, 643 N.W.2d 765, 768 (emphasis added). Both purposes 

of service of process are fulfilled by the directives in SDCL 21-22-17 and SDCL 21-

22-18, whereby the interested parties are given notice of the commencement of the 

proceeding along with an opportunity to object and be heard. These procedures also 

satisfy the requirement in SDCL 21-24-7 that “all persons shall be made parties 

who have or claim any interest which would be affected by the declaration[.]” Thus, 

the notice procedure in SDCL chapter 21-22 serves a different, but necessary, 

function other than commencement of the proceeding.

 

8. Similar to SDCL 21-22-18 and SDCL 21-22-19 (service by publication), the 

Uniform Probate Code provides that notice may be given pursuant to SDCL 

29A-1-401 either by mail, by personal service, or by publication.
#28885

-16-

[¶33.] Nevertheless, Edwin suggests that the circuit court’s dismissal was 

proper because the McFarlands did not include him in the notice of hearing when he 

is clearly an interested party as the trustee of the most current trust document. See

SDCL 21-22-18 (requiring notice to be served upon “fiduciaries, beneficiaries, and 

attorneys of record”). While Edwin is correct that he should have received notice in 

the same manner as the other interested parties, the proper remedy is not a 

dismissal of the proceeding. Edwin’s argument ignores the fact that certain types of 

proceedings, like those involving the administration of trusts and wills, commence 

upon the filing of the petition. Such proceedings are different in nature than many 

other types of civil actions wherein there is a clearly identified “defendant” upon 

whom service of summons must be made in accord with SDCL 15-2-30. In 

proceedings involving wills and trusts, there are instead several “interested 

parties,” some of whom may object to the relief requested, while others may not. 

While not the case here, it is often unknown at the commencement of these 

proceedings whether one of these interested parties may object. This is no doubt 

the reason why there is not a requirement to personally serve every interested party 

with a summons at the outset of one of these proceedings.

[¶34.] There is, however, a remedial consequence in the event of a failure to 

provide due notice to an interested party related to a request to have a trust 

declared valid or invalid. Under SDCL 21-24-7, “no declaration shall prejudice the 

rights of persons not parties to the proceeding.” This is consistent with SDCL 29A3-105 in the context of probate and administration of wills, which directs that a 

court’s determination in a probate proceeding is binding on the persons notified 
#28885

-17-

even “though less than all interested persons may have been given notice.” See In 

re Bickel, 2016 S.D. 28, ¶¶ 22-26, 879 N.W.2d 741, 748–50 (failure to serve notice on 

all interested parties did not deprive the court of jurisdiction to render a 

determination as to all persons notified in conformity with SDCL 29A-1-401).

[¶35.] Notably, here, Edwin’s wife Carolyn, one of the beneficiaries of the 

trust, was noticed by mail and it is undisputed that Edwin had actual notice of the 

judicial proceeding as he filed a timely objection. Thus, in his capacity as a 

fiduciary, he has not been deprived of the opportunity to protect the interests of the 

beneficiaries of the more recent versions of the trust at issue. Nonetheless, on 

remand, the McFarlands should comply with the procedures in SDCL 21-22-18 to 

ensure that all interested parties are properly noticed as to any future hearings.

Conclusion

[¶36.] Because a circuit court may consider the validity of a trust in a petition 

for judicial supervision under SDCL chapter 21-22, the McFarlands’ petition, filed 

pursuant to SDCL 21-22-9, which included a request that the circuit court 

determine the validity of the various trust amendments, properly commenced a 

judicial proceeding as contemplated by SDCL 55-4-57(a). The McFarlands’ trust 

challenge was timely because they filed their petition within the one-year 

timeframe after Russell’s death. Therefore, the circuit court erred when it 

dismissed the portion of the McFarlands’ petition requesting that the circuit court 

determine the validity of the trust or its amendments.

[¶37.] We reverse and remand.
#28885

-18-

[¶38.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, 

Justices, concur.