#23833-a-MILLER, Retired Justice 

2006 SD 79

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN THE MATTER OF THE ESTATE OF 

KENNETH THOMAS DUEBENDORFER 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

TURNER COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE LEE D. ANDERSON 

Judge 

* * * * 

KRISTINE L. KREITER O’CONNELL 

SANDER J. MOREHEAD of 

Woods, Fuller, Shultz and Smith 

Sioux Falls, South Dakota Attorneys for appellants 

Mollers. 

JEFF COLE of 

Zimmer, Duncan & Cole 

Parker, South Dakota Attorneys for contestants 

and appellees, M. Hinds, V. 

Sikkink, L. Zenk, M. Bienash, 

R. Jeffords, & E. Barks. 

* * * * 

CONSIDERED ON BRIEFS 

ON MAY 25, 2006 

 OPINION FILED 8/16/06
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#23833 

MILLER, Retired Justice 

[¶1.] Kenneth Duebendorfer executed a will that made Randy and Kathy 

Moller (Mollers) the chief beneficiaries. Upon Duebendorfer’s death, several 

individuals filed a petition contesting probate of the will. A jury found the will to be 

the product of undue influence and it was denied probate. Mollers appeal. We 

affirm. 

Facts and Procedural History 

[¶2.] Duebendorfer died on April 27, 2003, at the age of ninety. He was a 

bachelor who lived modestly, but had substantial wealth. He had one sister, Irene 

Rohrabaugh, who died on February 23, 2001. Kathy Moller is the great niece by 

marriage of Rohrabaugh. She and her husband Randy are the appellants in this 

case. The contestants are Marcella Hinds (she and her deceased husband, Don, 

were close friends of Duebendorfer), the Hinds’ two daughters, Victoria Sikkink and 

Linda Zenk, Maxine Bienash and Elizabeth Barks, both cousins of Duebendorfer, 

and Russell Jeffords, Duebendorfer’s friend. 

[¶3.] In 1998 Duebendorfer executed a power of attorney naming Hinds as 

his attorney-in-fact. She was taking care of Duebendorfer on a daily basis, 

providing hygiene, meals and transportation. She also assisted Duebendorfer in his 

financial affairs by paying his bills. It is undisputed that Hinds never asked for 

money, nor was she ever paid by Duebendorfer for assisting him. 

[¶4.] From the time Hinds was named Duebendorfer’s attorney-in-fact until 

Rohrabaugh’s death, Mollers had mere “sporadic” contact with Duebendorfer, seeing 

him only about once a month. After Rohrabaugh’s death, Duebendorfer was 
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requested by Attorney Mike McGill, (who was representing Kathy on behalf of 

Rohrabaugh’s estate), to disclaim his interest in joint bank accounts and property 

Duebendorfer held with Rohrabaugh. This request was apparently for South 

Dakota inheritance tax concerns. Duebendorfer disclaimed his interest in the 

property, but refused to disclaim his interest in the money. If he had done so, 

Kathy would have financially benefited as she was a beneficiary of Rohrabaugh’s 

estate. 

[¶5.] In March 2001, Hinds took Duebendorfer to the State Bank of Alcester 

to meet with bank official Lois Anderson to change several bank accounts and 

certificates of deposits (CD’s) he had held jointly with Rohrabaugh.1 Duebendorfer 

opened five different CD’s with payable on death (POD) beneficiaries for a total of 

approximately $170,000. He also opened two other accounts for a total of 

approximately $178,000. Those two accounts were in Duebendorfer’s name only 

with no POD beneficiaries. 

[¶6.] Also in March, Duebendorfer met with Attorney Gary Ward to discuss 

making a will. Hinds was present at this meeting, but did not participate in the 

discussion. Duebendorfer executed that will on March 21, 2001. It provided cash 

bequests to Evelyn Brugger, Dennis West, Elizabeth Barks, Maxine Bienash, Judy 

Timm, Joyce Phyle, Marcella Hinds, Linda Floren, and Victoria Sikkink. The will 

further provided that the residue of the estate would be divided in seven equal 

1. None of these accounts benefited Hinds or any member of her family. 
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shares to Ella Nason, Joyce Phyle, Russell Jeffords, Hinds, Linda Floren, Victoria 

Sikkink, and Kathy and Randy (they were to share 1/7 equally). 

[¶7.] After Rohrabaugh’s death, Mollers began to have more frequent 

contact with Duebendorfer. Beginning in March 2002, Randy was attempting to see 

him once a week. Mollers also began to help care for Duebendorfer, assisting with 

his hygiene, meals, and household needs. At the same time, Hinds noted that her 

relationship with Duebendorfer began to suddenly change; his actions towards her 

were angry and belligerent. Duebendorfer apparently was upset with Hinds over a 

gun her grandson had borrowed from him, as well as the care and frequency of 

visits he was receiving from her. Additionally, there was concern because it was 

being suggested to Duebendorfer by Randy and Duebendorfer’s friend, Ray Lewis, 

that Hinds was mishandling or mismanaging his money.2 These suggestions upset 

Duebendorfer. 

[¶8.] Towards the end of March 2002, Duebendorfer reviewed his will with 

Ray Lewis. Lewis told Duebendorfer that he thought Hinds was trying to “take 

him” and this upset Duebendorfer. Duebendorfer further reviewed his will with 

Mollers. Kathy testified that she was “amazed” at what the will contained and she 

“questioned” the will’s provisions, noting that her brother was not mentioned. 

Randy contacted Attorney McGill to arrange an appointment so that Duebendorfer 

could execute a new power of attorney and will. 

2. Mollers concede that there is no evidence in the record that Hinds ever had or 

was stealing, taking, or mishandling any of Duebendorfer’s money or 

property. 
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[¶9.] On March 30, 2002, Duebendorfer signed a new power of attorney 

naming Mollers as his true and lawful attorneys-in-fact. He also discussed terms of 

a new will with McGill. McGill testified that he noted at the meeting that 

Duebendorfer was very angry with Hinds, but was not angry at nor had any ill 

feelings towards any of the other beneficiaries of his current will. After this 

meeting McGill communicated with Duebendorfer through Randy, receiving from 

Randy changes Duebendorfer allegedly wanted to make. Both Randy and Kathy 

admitted that they were aware of the impact of the changes Duebendorfer was 

making in his will, i.e., that they were to be the chief beneficiaries under the new 

will. 

[¶10.] McGill testified that at the time of drafting the new will he was 

concerned with the possibility Mollers were exercising undue influence over 

Duebendorfer. In McGill’s opinion, three of the four elements of undue influence 

were present. He testified that Mollers had both access and opportunity to exercise 

undue influence over Duebendorfer. Finally, McGill testified that had he known 

Randy was telling Duebendorfer that Hinds was stealing from him or mishandling 

his money, the information would be evidence of undue influence and a badge of 

fraud and, importantly, he would not have prepared the new will or permitted it to 

be executed. 

[¶11.] Duebendorfer executed the new will on April 10, 2002. It again made 

monetary bequests to Russell Jeffords, Evelyn Brugger, Hinds, and Roy Zinser, as 

well as a bequest to Ray Lewis. However, unlike the old will, under the new will 

these bequests would fail if the individual predeceased Duebendorfer. The will then 
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made Mollers the chief beneficiaries of Duebendorfer’s estate by leaving the 

remainder, both real and personal property, to them rather than dividing it evenly 

as he had before. The new will made this provision even though several people, 

including Mollers, testified that Duebendorfer did not want his estate to go to one 

individual; rather, he wanted it divided evenly among several people. Also 

troublesome was that the bequest to Mollers would not fail if they predeceased 

Duebendorfer; rather, it would go to their heirs. The new will further contained a 

contestability clause that the old will had not. 

[¶12.] After the execution of the April 2002 will, Mollers used the power of 

attorney for their personal benefit. Randy used it to attempt to terminate a lease 

Duebendorfer had with Roger Stevens on Duebendorfer’s farm, which had existed 

for over thirty years (because Randy was interested in farming the land himself). 

When Stevens spoke to Duebendorfer about the lease, Duebendorfer apparently had 

no idea that Randy had termination papers prepared. After talking with 

Duebendorfer, they agreed the lease would remain in effect. Stevens agreed to 

increase the rent on 9.5 acres of land and keep the rent the same for the remainder 

of the term. 

[¶13.] Moreover, on January 15, 2003, after obtaining a note allegedly signed 

by Duebendorfer, Randy changed the POD beneficiary on all of the accounts at the 

Alcester bank, listing himself and Kathy as the POD beneficiaries.3 All of these 

changes resulted in approximately $266,000 in POD benefits to Mollers upon 

3. See Bienash v. Moller, 2006 SD 78, 721 NW2d 431 for further explanation of 

these transactions. 
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Duebendorfer’s death on April 27, 2003. Randy also made POD beneficiary changes 

on two accounts Duebendorfer had at the Wells Fargo Bank in Beresford. After the 

changes made by Randy, these two accounts had Randy and Kathy as POD 

beneficiaries and resulted in a payment of approximately $129,000 to Mollers. 

Overall, upon Duebendorfer’s death Mollers were paid a total of approximately 

$395,000 as a result of all the POD beneficiary changes Randy made using the 

power of attorney. 

[¶14.] After Duebendorfer’s death, Hinds and several others filed a petition 

contesting probate of Duebendorfer’s April 10, 2002 will, claiming it had been 

procured by undue influence on the part of Mollers. A jury trial was held July 25-

28, 2005. The jury found the will was the product of undue influence and it was 

denied probate. 

[¶15.] Mollers appeal raising two issues: 

1. Whether the trial court erred in allowing “other acts” evidence 

under SDCL 19-12-5 (Rule 404(b)). 

2. Whether the trial court erred in giving Jury Instruction 17. 

Standard of Review 

[¶16.] “Evidentiary rulings made by the trial court are presumed correct and 

are reviewed under an abuse of discretion standard.” Veeder v. Kennedy, 1999 SD 

23, ¶41, 589 NW2d 610, 619 (citing State v. Oster, 495 NW2d 305, 309 (SD 1993)). 

See also State v. Mattson, 2005 SD 71, ¶13, 698 NW2d 538, 544 (citations omitted). 

“The test is not whether we would have made the same ruling, but whether we 

believe a judicial mind, in view of the law and the circumstances, could have 

reasonably reached the same conclusion.” Veeder, 1999 SD 23, ¶41, 589 NW2d at 
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619 (citing State v. Rufener, 392 NW2d 424, 426 (SD 1986)). “If error is found, it 

must be prejudicial in nature before this Court will overturn the trial court’s 

evidentiary ruling.” Mattson, 2005 SD 71, ¶13, 698 NW2d at 544 (citing Novak v. 

McEldoney, 2002 SD 162, ¶7, 655 NW2d 909, 912 (citations omitted)). 

[This Court] construe[s] jury instructions as a whole to 

learn if they provided a full and correct statement of the law. If, 

as a whole, the instructions misled, conflicted, or confused, then 

reversible error occurred. The party charging that an 

instruction was given in error has the dual burden of showing 

that the instruction was erroneous and prejudicial. An 

erroneous instruction is prejudicial if in all probability it 

produced some effect upon the verdict and is harmful to the 

substantial rights of the party assigning it. 

Kappenman v. Stroh, 2005 SD 96, ¶14, 704 NW2d 36, 40-41 (citing Behrens v. 

Wedmore, 2005 SD 79, ¶37, 698 NW2d 555, 570 (citing First Premier Bank v. 

Kolcraft Enterprises, Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448)). 

Analysis and Decision 

[¶17.] 1. Whether the trial court erred in allowing “other acts” 

evidence under SDCL 19-12-5 (Rule 404(b)). 

[¶18.] Mollers filed a motion in limine seeking to exclude any evidence 

regarding their activities as Duebendorfer’s attorneys-in-fact relating to the POD 

beneficiary changes as well as evidence concerning Randy’s attempt to terminate 

Stevens’ farm lease. After a pretrial hearing and receiving briefs and arguments 

from both parties, the trial court denied Mollers’ motion. At trial, both parties 

made reference to and discussed the POD beneficiary changes to the CD’s and the 

farm lease. However, Mollers never objected to this testimony. 

[¶19.] Now on appeal, Mollers argue that the trial court erred in allowing the 

contestants’ to introduce evidence of “other acts” under SDCL 19-12-5 (Rule 404(b)). 
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They specifically argue that the evidence relating to the changing of the POD 

beneficiaries on the CD’s held by Duebendorfer to Randy and Kathy and the 

attempted termination of Stevens farm lease by Randy was “irrelevant and unfairly 

prejudicial to the ultimate detriment of the Mollers.” However, because Mollers 

failed to object to this evidence at trial, they have failed to preserve this issue for 

appeal. 4 

[¶20.] The law in effect at the time of trial was clear. “The purpose of a 

motion in limine is to prevent prejudicial evidence, argument, or reference from 

reaching the ears of the jury. However, a trial court’s ruling on a motion in limine 

is preliminary and may change depending on what actually happens in trial.” 

Kappenman, 2005 SD 96, ¶4, 704 NW2d at 39 (citing Kolcraft Enterprises, 2004 SD 

92, ¶7, 686 NW2d at 437). “Alert practitioners must remain conscious to the danger 

of failing to make an adequate record at trial when a motion in limine has been 

earlier granted or denied.” Kolcraft Enterprises, 2004 SD 92, ¶16, 686 NW2d at 

441. 

The initial ruling by itself preserves nothing for appeal. To 

claim error based on the denial of a motion in limine, the trial 

court must allow, over renewed objection, that which the moving 

party sought to exclude to be presented to the jury. Where an in 

limine motion is denied but the evidence, argument, or reference 

4. The Court, in holding this issue waived on appeal today, recognizes that 

Supreme Court rule 06-67, Amendment of SDCL 19-9-3 (Rule 103(a)), 

effective July 1, 2006, provides in part: “Once the court makes a definitive 

ruling on the record admitting or excluding evidence, either at or before trial, 

a party need not renew an objection or offer of proof to preserve a claim of 

error for appeal.” However, because this rule was not in effect at the time of 

the ruling in the present case, Mollers waive their right to appeal this issue 

by failing to object at trial. 
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is subsequently entered in the record without objection, there is 

no appealable issue, no reversible error. 

 

Kappenman, 2005 SD 96, ¶4, 704 NW2d at 39 (citing State v. Red Star, 467 NW2d 

769, 771 (SD 1991) (citing State v. Gallipo, 460 NW2d 739, 743 (SD 1990))) 

(additional citations omitted). See also Kolcraft Enterprises, 2004 SD 92, ¶16, 686 

NW2d at 441 (holding “in the absence of an objection or an offer of proof during trial 

to the admission or refusal to admit challenged evidence, an appeal from a ruling on 

a motion in limine is waived”) (citing Joseph v. Kerkvliet, 2002 SD 39, ¶7, 642 

NW2d 533, 535). 

[¶21.] Mollers failed to object at trial to the introduction of the evidence 

concerning the changes to the CD’s and the farm lease. Therefore, they failed to 

preserve this issue for appeal. Thus, it is deemed waived and we decline to address 

it. 

[¶22.] 2. Whether the trial court erred in giving Jury Instruction 

17. 

[¶23.] Mollers argue that the trial court erred in giving Jury Instruction 175

for two reasons. First, they assert it was error for the trial court to conclude, as a 

 

 (continued . . .) 

5. Instruction 17, in its entirety, reads: 

 FIRST, in this case you are instructed that a confidential relationship 

did exist between Kenneth Thomas Duebendorfer and Randy and Kathy 

Moller because the Mollers were the agents for Duebendorfer under the 

Power of Attorney at the time of the execution of the April 10, 2002 will. If 

you find that the Mollers actively participated in the preparation and 

execution of the will and that they unduly profited there from, then a 

presumption of undue influence arises. When this presumption of undue 

influence arises, the burden of proof shifts to the Mollers to show that they 

took no unfair advantage of Kenneth Thomas Duebendorfer in the creation of 

the will in order to rebut or defeat a finding that undue influence exists. 
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matter of law, that a confidential relationship existed between Mollers and 

Duebendorfer. Second, they argue Instruction 17 confused the burden of proof with 

the burden of going forward with the evidence. 

[¶24.] This Court “construe[s] jury instructions as a whole to learn if 

they provided a full and correct statement of the law.” Kappenman, 2005 SD 

96, ¶14, 704 NW2d at 40. Further, “the party charging that an instruction 

was given in error has the dual burden of showing that the instruction was 

erroneous and prejudicial. An erroneous instruction is prejudicial if in all 

probability it produced some effect upon the verdict and is harmful to the 

substantial rights of the party assigning it.” Id. 

Was Instruction 17 a misstatement of the law and therefore erroneous? 

________________________ 

(. . . continued) 

 If this presumption of undue influence arises, as set forth above, and if 

you determine that the Mollers did take unfair advantage of Kenneth 

Duebendorfer, then you shall find that Randy and Kathy Moller exercised 

undue influence over Kenneth Thomas Duebendorfer and check Yes on the 

Special Verdict form. 

 SECOND, if you determine that either 1) the Mollers did not actively 

participate in the preparation and execution of the April 10, 2002 will, or 2) 

that the Mollers did not unduly profit there from, then the contestants have 

the burden of proving the four elements set forth in Instruction No. 16 in 

order to establish that the will was the result of the undue influence of the 

Mollers. 

 If you find that all four of these elements have been proved, you shall 

check Yes on the Special Verdict Form. If you find that one or more of these 

four elements have not been proved, then you shall check No on the Special 

Verdict Form. 
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[¶25.] Mollers first argue that Instruction 17 removed a question of fact from 

consideration by the jury. They assert that the trial court erred in instructing the 

jury that, because of the power of attorney, a confidential relationship did exist at 

the time of the execution of the April 10, 2002 will. 

[¶26.] Under our settled law: “[a] fiduciary relationship is founded on a 

‘peculiar confidence’ and trust placed by one individual in the integrity and 

faithfulness of another. When such relationship exists, the fiduciary has a ‘duty to 

act primarily for the benefit’ of the other. ‘Generally, in a fiduciary relationship, the 

property, interest or authority of the other is placed in the charge of the fiduciary.’” 

Ward v. Lange, 1996 SD 113, ¶12, 553 NW2d 246, 250 (citing High Plains Genetics 

Research, Inc. v. JK Mill-Iron Ranch, 535 NW2d 839, 842 (SD 1995)) (citations 

omitted). “The existence of a fiduciary duty and the scope of that duty are questions 

of law for the court.” Id. Therefore, in South Dakota, as a matter of law, a fiduciary 

relationship exists whenever a power of attorney is created. 

[¶27.] This Court has held that “a confidential relationship is generally 

synonymous with a fiduciary relationship.” Buxel v. First Fidelity Bank, 1999 SD 

126, ¶14, 601 NW2d 593, 597 (citing Crane v. Centerre Bank of Columbia, 691 

SW2d 423, 428 (MoCtApp 1985)) (citation omitted). Furthermore, a “confidential 

relationship is not restricted to any particular association of persons.” Hyde v. 

Hyde, 78 SD 176, 186, 99 NW2d 788, 793 (1959). A “confidential relationship exists 

whenever a decedent has placed trust and confidence in the integrity and fidelity of 

another.” In the Matter of Estate of Unke, 1998 SD 94, ¶16, 583 NW2d 145, 148 
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(citing In re Estate of Madsen, 535 NW2d 888, 892 (SD 1995)) (citations and 

internal quotations omitted). 

[¶28.] It is undisputed that the Mollers were in a fiduciary relationship as of 

March 30, 2002, as a result of the execution of the power of attorney by 

Duebendorfer. In addition and equally important, both Randy and Kathy 

individually admitted at trial that from March 30, 2002, until Duebendorfer’s death, 

each was in a confidential and fiduciary relationship with Duebendorfer. Kathy 

testified: 

Q: You agree also that you were in a confidential and fiduciary 

relationship with Kenneth once the power of attorney was executed in 

your favor on March 30, 2002? 

 A: Correct. 

Randy testified: 

Q: And you agree that from that time on, March 30, 2002, you were in a 

confidential and fiduciary relationship with Kenneth? 

A: Yes, I was. 

Mollers cannot claim a version of the facts more favorable than that to which they 

testified at trial. See Overfield v. American Underwriters Life Ins. Co., 2000 SD 98, 

¶19, 614 NW2d 814, 819; Western States Land & Cattle Co., Inc. v. Lexington Ins. 

Co., 459 NW2d 429, 434 (SD 1990). Therefore, because Mollers admit they were in 

a confidential and fiduciary relationship with Duebendorfer (and they clearly were), 

it was not error for the trial court to instruct the jury, as a matter of law, such a 

confidential relationship existed. 

[¶29.] Because the trial court did not err in instructing the jury that a 

confidential relationship existed, we next address Mollers’ second claim of error; 

that the trial court improperly instructed the jury regarding the burden of proof of 
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undue influence. Mollers assert that the trial court erred in instructing that the 

burden of proof shifted to them. They argue that only the burden of going forward 

with the evidence shifted to them. 

[¶30.] The relative burdens of the parties in contested will cases are set forth 

by statute. SDCL 29A-3-407 provides: 

In contested cases, petitioners who seek to establish intestacy 

have the burden of establishing prima facie proof of death, 

venue, and heirship. Proponents of a will have the burden of 

establishing prima facie proof of due execution in all cases, and, 

if they are also petitioners, prima facie proof of death and venue. 

Contestants of a will have the burden of establishing lack of 

testamentary intent or capacity, undue influence, fraud, duress, 

mistake, or revocation. Parties have the ultimate burden of 

persuasion as to matters with respect to which they have the 

initial burden of proof. If a will is opposed by the petition for 

probate of a later will revoking the former, it shall be 

determined first whether the later will is entitled to probate. If 

a will is opposed by a petition for a declaration of intestacy, it 

shall be determined first whether the will is entitled to probate. 

(emphasis added). This statute clearly indicates that the party with the initial 

burden of proof has the ultimate burden of persuasion. Thus, the proponents of the 

will, Mollers, had the ultimate burden of persuasion as to the “due execution” of the 

will. That burden does not shift, but remains with them. Conversely, the 

contestants have the ultimate burden of persuasion to establish undue influence. 

[¶31.] Under this Court’s settled law, “to establish the existence of undue 

influence a will contestant must prove four elements by a preponderance of the 

evidence: ‘(1) decedent’s susceptibility to undue influence; (2) opportunity to exert 

such influence and effect the wrongful purpose; (3) a disposition to do so for an 

improper purpose; and (4) a result clearly showing the effects of undue influence.’” 

Estate of Dokken, 2000 SD 9, ¶27, 604 NW2d 487, 495 (quoting Unke, 1998 SD 94, 
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¶12, 583 NW2d at 148 (citing In re Estate of Elliott, 537 NW2d 660, 662-63 (SD 

1995))). 

[¶32.] “A presumption of undue influence arises ‘when there is a confidential 

relationship between the testator and a beneficiary who actively participates in 

preparation and execution of the will and unduly profits therefrom.’” Id. ¶28 (citing 

Unke, 1998 SD 94, ¶13, 583 NW2d at 148 (quoting Madsen, 535 NW2d at 892)). 

“When this presumption arises, the burden shifts to the beneficiary to show he took 

no unfair advantage of the decedent.” Id. (citing Unke, 1998 SD 94, ¶13, 583 NW2d 

at 148 (citing In re Estate of Metz, 78 SD 212, 222, 100 NW2d 393, 398 (1960))). In 

addition, “[t]he finding of a confidential relationship shifts the burden to [the 

beneficiary] to show by a preponderance of the evidence that [he/]she took no unfair 

advantage of [the decedent] in the creation of the will[.]” In re Estate of Smith 

(Smith II), 520 NW2d 80, 83 (SD 1994) (citing In re Estate of Smith (Smith I), 481 

NW2d 471, 475 (SD 1992)).6 However, “the burden of going forward with the 

evidence in an undue influence case does not shift to the beneficiary unless a 

presumption of undue influence is established.” Dokken, 2000 SD 9, ¶28, 604 NW2d 

at 495 (citing Unke, 1998 SD 94, ¶13, 583 NW2d at 148) (emphasis omitted). 

[¶33.] Instruction 17 instructed the jury that because a confidential 

relationship existed, Mollers must show they took no unfair advantage of 

6. Smith I and Smith II predate the adoption of SDCL 29A-3-407. 
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Duebendorfer in the preparation and execution of his will. Id. Instruction 17 

further instructed: 

if you find that the Mollers actively participated in the 

preparation and execution of the will and that they unduly 

profited there from, then a presumption of undue influence 

arises. When this presumption of undue influence arises, the 

burden of proof shifts to the Mollers to show that they took no 

unfair advantage of Kenneth Thomas Duebendorfer in the 

creation of the will in order to rebut or defeat a finding that 

undue influence exists. 

This instruction allowed the jury to determine, 1) whether the contestants had 

established that Mollers had actively participated in the preparation and execution 

of the will, and 2) whether they unduly profited from their actions. It was only after 

making these two findings that the jury was instructed a presumption of undue 

influence was established. As per the holdings of Dokken, Unke, and Smith II, the 

burden then shifted to Mollers to rebut this presumption. 

[¶34.] The jury was then further instructed that if they found Mollers did not 

rebut this presumption, they were to check yes on the special verdict form. 

However, if the jury determined that either 1) Mollers did not actively participate in 

the preparation and execution of the will, or 2) did not unduly profit from it, i.e.

they rebutted the presumption, the jury were then instructed that the contestants 

“have the burden of proving the four elements set forth in Instruction No. 16 in 

order to establish that the will was the result of the undue influence of the Mollers.” 

Thus, “the ultimate burden remain[ed] on the person contesting the will to prove 

the elements of undue influence by a preponderance of the evidence.” Unke, 1998 

SD 94, ¶13, 583 NW2d at 148 (citing Madsen, 535 NW2d at 893). 
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[¶35.] Therefore, based on the forgoing, Instruction 17, as a whole, correctly 

states the law on undue influence and the shifting burden. As Instruction 17 was 

not a misstatement of law, this Court does not need to address whether the 

instruction was prejudicial. 

[¶36.] Affirmed. 

[¶37.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, 

Justices, concur. 

[¶38.] ZINTER, Justice, concurs in part and concurs in result. 

[¶39.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified. 

ZINTER, Justice (concurring in part and concurring in result). 

I 

[¶40.] I concur on issue 1 and that part of issue 2 concluding that there was 

no error in instructing the jury that a confidential relationship existed. As the 

Court points out, Mollers admitted that there was a confidential relationship, and 

therefore, they are in no position to argue otherwise on appeal. 

[¶41.] However, I disagree with the Court’s analysis on the burden of proof. 

See supra ¶¶29-35. I disagree because the “FIRST” part of Instruction 17 instructed 

the jury that if a presumption of undue influence arose, the ultimate “burden of 

proof” shifted from the contestants (Hinds et al.) to the proponents (Mollers) of the 

will. However, under SDCL 29A-3-407, the ultimate burden of proof of undue 

influence was on the contestants. And, under SDCL 19-11-1 (Rule 301), even 

though the presumption of undue influence shifted the burden of going forward with 

the evidence to the proponents, the ultimate burden of proof should have remained 
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with the contestants. Therefore, this part of Instruction 17, shifting the ultimate 

burden of proof to the proponents, was erroneous as a matter of law. Nevertheless, 

because it was harmless error, I concur in result. 

II 

[¶42.] The initial problem in this case is defining the “burden of proof” that 

shifted under Instruction 17. “The term ‘burden of proof’ is one of the ‘slipperiest 

member[s] of the family of legal terms.’” Schaffer ex rel. Schaffer v. Weast, __ US 

__, __, 126 SCt 528, 533, 163 LEd2d 387 (2005) (quoting 

). The difficulty is due, in part, to the fact that 

the term has historically “encompassed two distinct burdens: the ‘burden of 

persuasion,’ i.e., which party loses if the evidence is closely balanced, and the 

‘burden of production,’ i.e., which party bears the obligation to come forward with 

the evidence at different points in the proceeding.” Id. at 533-34 (citation omitted). 

2 J. Strong, McCormick on 

Evidence § 342, at 433 (5thed 1999)

In McKiver v. Theo. Hamm Brewing Co., this Court explained the importance of this 

distinction in cases where a presumption causes the burden of going forward with 

the evidence to shift: 

 This burden of going forward with the evidence differs from the 

burden of proof. A presumption casts upon the person against 

whom it is applied the duty to go forward with the evidence on 

the point to which the presumption relates. The burden of proof, 

meaning the duty of establishing the truth of a claim by such 

quantum of proof as the law requires, rests upon the party 

having the affirmative of an issue. The latter never shifts 

during the course of a trial, while the burden of going forward 

with the evidence may shift. 

67 SD 613, 618, 297 NW 445, 447 (1941) (citing Peters v. Lohr, 24 SD 605, 124 NW 

853, 855 (1910)). Considering this distinction, the issue is whether the “FIRST” 
#23833 

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part of Instruction 17, providing that “the burden of proof shift[ed] to the Mollers,” 

erroneously shifted to them the ultimate burden of persuasion on undue influence. 

[¶43.] In determining whether an instruction is erroneous, “our standard of 

review requires us to construe [the instructions] as a whole to find ‘if they provided 

a full and correct statement of the law.’” Steffen v. Schwan’s Sales Enters., Inc., 

2006 SD 41, ¶8, 713 NW2d 614, 617 (quoting First Premier Bank v. Kolcraft 

Enters., Inc., 2004 SD 92, ¶40, 686 NW2d 430, 448 (citations omitted)). In 

reviewing the jury instructions as a whole, it is helpful to compare the “SECOND” 

part of Instruction 17 dealing with undue influence cases in general, with the 

“FIRST” part of Instruction 17 dealing with the presumption of undue influence 

when a confidential relationship arises. 

[¶44.] The “SECOND” part of Instruction 17 correctly informed the jury that 

“the contestants had the burden of proving the four elements set forth in Instruction 

16 in order to establish that the will was the result of the undue influence of the 

Mollers.” (Emphasis added.) Furthermore, Instructions 15 and 16 indicated that 

the burden of “proving” the elements meant that the contestants bore the ultimate 

burden of persuasion. Instruction 16 provided: “To establish the existence of undue 

influence, the contestant must prove by the greater convincing force of the evidence 

four elements . . . .”7 Similarly, Instruction 15 emphasized that the contestants 

 (continued . . .) 

7. Jury Instruction 16 stated: 

To establish the existence of undue influence, the contestant must prove 

by the greater convincing force of the evidence four elements: 

(1) That at the time the Will under question was prepared and signed by 

Kenneth Duebendorfer, he was susceptible to undue influence; 
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________________________ 

(. . . continued) 

bore the ultimate burden of persuasion.8 Thus, the jury was correctly instructed in 

Instructions 15, 16, and the “SECOND” part of 17 that the contestants bore the 

ultimate burden of persuasion on undue influence.9

[¶45.] In contrast, the “FIRST” part of Instruction 17, dealing with undue 

influence in confidential relationships, incorrectly shifted the burden of persuasion 

from the contestants to the proponents. The instruction indicated that if a 

(2) That the Respondents, Randy Moller and Kathy Moller, had sufficient 

opportunity to exert such influence and effect the wrongful purpose; 

(3) That the Respondents, Randy Moller and Kathy Moller, had a 

disposition to do so for an improper purpose; and 

(4) That a result was produced in the April 10, 2002, Will, which shows 

the effects of such influence. 

8. Jury Instruction 15 stated: 

In civil actions, the party who asserts the affirmative of an issue 

must prove that issue by greater convincing force of the evidence. 

Greater convincing force means that after weighing the evidence on 

both sides there is enough evidence to convince you that something is 

more likely true than not true. In the event that the evidence is evenly 

balanced so that you are unable to say that the evidence on either side 

of an issue has the greater convincing force, then your finding upon the 

issue must be against the party who has the burden of proving it. 

9. This Court has noted: 

 

Under our settled law, to establish the existence of undue 

influence a will contestant must prove four elements by a 

preponderance of the evidence: “(1) decedent’s susceptibility to 

undue influence; (2) opportunity to exert such influence and 

effect the wrongful purpose; (3) a disposition to do so for an 

improper purpose; and (4) a result clearly showing the effects of 

undue influence.”

Matter of Estate of Unke, 1998 SD 94, ¶12, 583 NW2d 145, 148 

(emphasis added) (citing Matter of Estate of Elliott, 537 NW2d 660, 

662-63 (SD 1995)). See also SDCL 29A-3-407 (stating that the 

contestants have the ultimate burden of establishing undue influence). 
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presumption of undue influence arose under the confidential relationship test,10 the 

burden of proof shifted to Mollers, the proponents. Instruction 17 stated: 

 [W]hen this presumption of undue influence arises, the burden 

of proof shifts to the Mollers to show that they took no unfair 

advantage of Kenneth Thomas Duebendorfer in the creation of 

the will in order to rebut or defeat a finding that undue 

influence exists. 

 

(Emphasis added.) This was an incorrect statement of the law because, under 

Instructions 15 and 16, this shifted the ultimate burden of persuasion to the 

proponents. As the Court itself acknowledges, SDCL 29A-3-407 requires that the 

contestants carry that “ultimate burden of persuasion” on undue influence. SDCL 

29A-3-407, see supra ¶30.11 What is not recognized is that even though the creation 

 (continued . . .) 

10. Some jurisdictions provide that the burden shifts simply when a confidential 

relationship exists. 3 William J. Bowe & Douglas H. Parker, Page on Wills § 

29.80, at 706 (3ded 2004). Other jurisdictions hold that the existence of a 

confidential relationship does not shift the burden “in the absence of evidence 

of other facts of imposition” such as when the beneficiary takes “an active 

part in preparing the will.” Id. at 707. 

In this jurisdiction, the existence of a confidential relationship does not, in 

and of itself, create a presumption of undue influence. The presumption of 

undue influence does arise if the beneficiary actively participated in the 

preparation and execution of the will and unduly profited therefrom. Matter 

of Estate of Elliott, 537 NW2d 660 (SD 1995); Matter of Weickum’s Estate, 

317 NW2d 142 (SD 1982); Matter of Heer’s Estate, 316 NW2d 806 (SD 1982); 

In re Anders Estate, 88 SD 631, 226 NW2d 170 (1975); In re Hobelsberger’s 

Estate, 85 SD 282, 181 NW2d 455 (1970). 

11. The Court’s opinion acknowledges that under this statute, the ultimate 

burden of persuasion of undue influence remains on the contestants 

throughout the entire proceeding. Supra ¶30. But, two paragraphs later the 

Court’s opinion inconsistently states: “In addition, ‘[t]he finding of a 

confidential relationship shifts the burden to [the beneficiary and proponent] 

to show by a preponderance of the evidence that [he/]she took no unfair 

advantage of [the decedent] in the creation of the will[.]’” See supra ¶32 

(emphasis added). Thus, after first indicating that under SDCL 29A-3-407 
#23833 

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________________________ 

(. . . continued) 

of a presumption of undue influence shifts the burden of going forward with the 

evidence, it does not shift the ultimate burden of persuasion.12 SDCL 19-11-1 (Rule 

301) clearly explains that: 

 a presumption imposes on the party against whom it is directed 

the burden of going forward with evidence to rebut or meet the 

presumption, but does not shift to such party the burden of proof 

in the sense of the risk of nonpersuasion, which remains 

throughout the trial upon the party on whom it was originally 

cast. 

the ultimate burden of establishing undue influence by a preponderance of 

the evidence is on the contestants, the opinion inconsistently states that it 

shifts to the proponents. 

 

12. No doubt, our case law has been a source of confusion on this point. 

See infra n15. However, we should clarify that the creation of a 

presumption only shifts the burden of going forward with the evidence. 

This Court has stated: 

 

Once [a confidential relationship] ha[s] been established, “the 

burden of ‘going forward with the evidence’ shifts to the 

beneficiary [the proponent] to show that he took no unfair 

advantage of his dominant position.” 

Matter of Estate of Borsch, 353 NW2d 346, 349 (SD 1984) (citing In re

Metz’ Estate, 78 SD 212, 222, 100 NW2d 393, 398 (1960)) (emphasis 

added). And: 

[I]f will contestants can establish the existence of a confidential 

relationship between the testatrix and the beneficiary under the 

contested will, the burden of going forward with the evidence

shifts to the beneficiary [the proponent] to show that he took no 

unfair advantage of his dominant position. 

 

Elliott, 537 NW2d at 663 (emphasis added) (citations omitted). 

However, the ultimate burden of proof does not shift: “The ultimate 

burden remains on the contestant to prove the elements of undue 

influence by a preponderance of the evidence.” In re Estate of Dokken, 

2000 SD 9, ¶28, 604 NW2d 487, 495 (citing Unke, 1998 SD 94, ¶12, 583 

NW2d at 148). 
#23833 

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(Emphasis added.)13 Therefore, Instruction17 is erroneous as a matter of law 

because it improperly shifted the ultimate burden of persuasion to Mollers, the 

proponents of this will.14

13. The adoption of this rule of evidence in 1978 did not change long-standing 

South Dakota law on the burden shifting effect of a presumption. As this 

Court remarked in 1967: 

“A presumption is not evidence of anything, and only relates to a 

rule of law as to which party shall first go forward and produce 

evidence sustaining a matter in issue. A presumption will serve 

as and in the place of evidence in favor of one party or the other 

until prima facie evidence has been adduced by the opposite 

party; but the presumption should never be placed in the scale 

to be weighed as evidence. The presumption, when the opposite 

party has produced prima facie evidence, has spent its force and 

served its purpose, and the party then, in whose favor the 

presumption operated, must meet his opponent’s prima facie 

evidence with evidence, and not presumptions. A presumption 

is not evidence of a fact, but purely a conclusion.” Peters v. 

Lohr, 24 SD 605, 609, 124 NW 853, 855 (1910). 

The function of a presumption was discussed by Judge Rudolph 

in Honrath v. New York Life Insurance Co., 65 SD 480, 275 NW 

258 (1937), 112 ALR 1272, and Headlee v. New York Life Ins. 

Co., 69 SD 499, 12 NW2d 313 (1943), quoting extensively from 

Wigmore on Evidence, 3rd Ed., § 2491, “the peculiar effect of a 

presumption ‘of law’ (that is, the real presumption) is merely to 

invoke a rule of law compelling the jury to reach the conclusion 

in the absence of evidence to the contrary from the opponent.” 

A presumption takes the place of evidence “unless and until 

evidence appears to overcome or rebut it, and when evidence 

sufficient in quality appears to rebut it the presumption 

disappears and thereafter the determination of the issues 

depends upon the evidence with the requirement as in other 

civil actions that the party having the affirmative of the issue 

involved in order to succeed shall sustain his position by a 

preponderance of the evidence.” In re Drake’s Estate, 150 Neb 

568, 35 NW2d 417, 423 [1948]. 

King v. Johnson Bros. Const. Co., 83 SD 69, 75-76, 155 NW2d 183, 186-

87 (1967). 
#23833 

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________________________ 

(. . . continued) 

[¶46.] The Court, however, does not find error because “[I]nstruction [17] 

allowed the jury to determine 1) whether the contestants had established that 

Mollers had actively participated in the preparation and execution of the will, and 

2) whether they unduly profited from their actions.” Supra ¶33 (emphasis added). 

However, allowing the jury to consider elements of a cause of action does not resolve 

an error in instructing the jury as to which party bore the burden of proof on those 

elements. 

[¶47.] The Court further suggests there was no error because, if the 

presumption of undue influence was established, the burden shifted to the Mollers 

to rebut this presumption “per the holdings of Dokken, Unke, and Smith II.” Supra

¶¶33-34. However, both Dokken and Unke recognized that the ultimate burden of 

proof remains with the contestants (Hinds). See Dokken, 2000 SD 9, ¶28, 604 

NW2d at 495-96; Unke, 1998 SD 94, ¶13, 583 NW2d at 148. Furthermore, to the 

extent there is contrary language in those decisions (or our other cases, such as 

14. In an analogous case decided by the Nebraska Supreme Court, the jury 

instructions placed the burden of persuasion on the contestants. 

Estate of McGowan, 197 Neb 596, 601, 250 NW2d 234, 237 (1977). 

However, the contestants argued that “the establishment of the 

presumption shifted the burden of proof from [them] to the proponent.” 

Id. The Nebraska Court concluded that the instructions were not 

erroneous, holding “in a will contest the burden of proof or the risk of 

nonpersuasion on the issue of undue influence is on the contestant and 

remains there throughout the trial.” Id. at 604-05, 250 NW2d at 239. 
#23833 

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Smith I and Smith II), those cases did not properly consider SDCL 29A-3-407 and 

Rule 301, and therefore, they should be overruled.15

[¶48.] In the final analysis, however, I concur in result because the error was 

not prejudicial. An erroneous instruction is prejudicial if the party contending that 

the instruction is erroneous proves that in all probability the instruction “produced 

some effect upon the verdict and is harmful to the substantial rights of the party 

assigning it.” Supra ¶24 (quoting Kappenman, 2005 SD 96, ¶14, 704 NW2d at 40). 

Here, the jury was properly instructed on the burden of proof for the general

elements of undue influence in the “SECOND” part of Instruction 17. And, the facts 

of this case satisfied those elements as a matter of law. Moreover, the evidence of 

undue influence under the confidential relationship theory was even more 

persuasive. See Bienash v. Moller, 2006 SD 78, 721 NW2d 431. Considering the 

strength of the evidence in this case, Mollers have failed to demonstrate that the 

erroneous instruction, in all probability, produced some effect on the verdict and 

was harmful to their rights. 

15. Smith I and Smith II both incorrectly state that “[t]he finding of a 

confidential relationship shifts the burden to [the beneficiary] to show by a 

preponderance of the evidence that she took no unfair advantage of [the 

testator].” Smith I, 481 NW2d at 475 (emphasis added); Smith II, 520 NW2d 

at 83 (quoting Smith I, 481 NW2d at 475). This language should be 

overruled. 

 

Similarly, this Court stated in Estate of Borsch that the presumption remains 

“even though the beneficiary introduces evidence rebutting the presumption.” 

353 NW2d at 351. This language should also be overruled in light of Rule 

301, which provides that “[w]hen substantial, credible evidence has been 

introduced to rebut the presumption, it shall disappear from the action or 

proceeding, and the jury shall not be instructed thereon.” (Emphasis added.)