Wednesday, June 19, 2019
The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons--even if not yet in existence--can be held to be parties to a proceeding “virtually so.” The doctrine was developed by courts in the 1800s and was significantly expanded by New York by statute in 1967. Fifty years later, in 2017, South Dakota enacted a comprehensive and detailed statutory scheme for virtual representation in trust matters, whether in judicial or non-judicial proceedings. South Dakota has quietly revolutionized virtual representation by validating proceedings even where a representative has a conflict of interest. This article contextualizes, comments upon, and explicates that statutory scheme, including statutory amendments enacted in 2018.