|
COURT OF APPEALS DECISION DATED AND RELEASED June 26, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to
review an adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports. |
No. 94-3316
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
In the Matter of the Estate
of Jeffrey M. Bender, Deceased:
LAWSON BENDER, Former Special
Administrator and
Personal Representative,
Appellant,
v.
KARMEN LINDHAL,
Claimant-Respondent.
APPEAL from a judgment
of the circuit court for Walworth County:
RICHARD G. HARVEY, JR., Reserve Judge.
Reversed and cause remanded.
Before Brown, Nettesheim
and Snyder, JJ.
PER CURIAM. Lawson
Bender (Lawson), the decedent's brother and former special administrator of the
Estate of Jeffrey M. Bender, appeals from a judgment admitting into probate a
will of Jeffrey M. Bender (the decedent) naming Karmen Lindhal as his sole
beneficiary, allowing Lindhal to file an amended claim against the estate,
voiding a quitclaim deed executed by Lindhal with regard to the single-family
residence she formerly shared with the decedent, and terminating Lawson's
status as personal representative of the estate. We conclude that the decedent died intestate because the will
offered by Lindhal and admitted into probate was invalidly executed and the
trial court erroneously invalidated the quitclaim deed. Therefore, we reverse and remand for further
proceedings consistent with this opinion.
The decedent and Lindhal
began living together in the early 1980s.
They purchased a single-family residence in 1988. The parties' romantic relationship
apparently ended in 1992. In August
1992, Lindhal and the decedent gave a second mortgage on the residence to a
bank and used the proceeds to satisfy personal and house-related debts. On September 2, 1992, Lindhal quitclaimed
her interest in the residence to the decedent.
The decedent died in an automobile accident on October 1,
1993. At the decedent's death, his
brother, Lawson, was issued letters of special administration and appointed
personal representative following a contested hearing.
Lindhal filed a claim
against the estate in November 1993 alleging the existence of an oral agreement
that she "could continue to reside and have an ownership interest" in
the residence. She also claimed all
personal property at the residence and a vehicle. She petitioned for probate of a will drafted by Attorney Andrew
Allen in 1988 which named her as the decedent's sole beneficiary.[1] Lawson challenged the validity of the will
under § 853.03, Stats., on a
number of occasions. Lindhal contended
that the will was properly executed.
An executed copy of the
1988 will was never located.[2] Lindhal, as the party offering the 1988
document as the decedent's will, had the burden to prove that the will was
valid by a preponderance of the evidence.
See Estate of Baker, 50 Wis.2d 330, 332 n.1, 184
N.W.2d 72, 73 (1971). Lindhal presented
the testimony of two individuals, Robert Burnette and Mary Hurdy-Schlehlein,
who testified that in the spring of 1988 they affixed their signatures as
witnesses to a document presented to them by the decedent at the Citizens
National Bank of Lake Geneva where Schlehlein and Burnette were working. The court found that the witnessed document
was the will drafted by Allen.
The trial court made the
following findings of fact regarding the will offered by Lindhal. Allen drafted the will at the decedent's
request in the spring of 1988 and asked the decedent to come to his office to
discuss and execute it. The decedent
never returned to Allen's office.
Rather, sometime during the spring of 1988, he took a document to the
Citizens National Bank. There, Burnette
and Schlehlein affixed their signatures to the document as witnesses. We recite the following paragraph from the
trial court's written decision:
Burnette
testified that he was in part of Schlehlein's office space, and that decedent,
with whom he was acquainted, arrived in Mary Schlehlein's office. Mary came into Burnette's office and asked
him if he would witness a signature.
Burnette walked through a small reception area, and Mary and the
decedent were there. The document had
been signed by decedent, so Burnette asked him if the signature was his
signature, and he replied "Yes."
Mary had already signed the document, and since Burnette had seen her
signature, as he put it, "hundreds of times," Burnette did not ask
her if her signature was in fact hers.
The decedent, Mary, and Burnette were all standing together in the same
room or space. Burnette signed below
the two signatures already on the document.
Based upon these facts,
the trial court concluded that the will was properly executed in the presence
of two witnesses, Schlehlein and Burnette, and that their testimony was
credible with regard to the execution of the will. Therefore, the court concluded that the 1988 will was legally
valid and governed distribution of the estate.
Where the trial court
acts as the finder of fact, its findings will not be disturbed unless they are
clearly erroneous. See
§ 805.17(2), Stats. However, whether those facts support a legal
conclusion that the decedent's will was valid presents a question of law which
we decide independently of the trial court.
See Estate of Warunek, 159 Wis.2d 129, 132, 463
N.W.2d 866, 867 (Ct. App. 1990).
Execution of wills is
governed by § 853.03, Stats.[3] Section 853.03 provided that in order to be
validly executed, every will must be in writing and executed with the following
formalities: (1) it must be signed by
the testator, and (2) "it must be signed by 2 or more witnesses in the
presence of the testator and in the presence of each other." Id.
"[I]t is the policy
of courts to sustain a will as legally executed if it is possible to do so
consistent with the requirements of [§ 853.03, Stats.]." Warunek,
159 Wis.2d at 134, 463 N.W.2d at 868.
Schlehlein and Burnette testified that the decedent signed the
will. The first requirement is
satisfied. Accordingly, we turn our
attention to the second requirement for executing a valid will: signature by two or more witnesses in the
presence of the testator and in the presence of each other.
Cases discussing the
requirement that a will be executed in the presence of two witnesses have
stated that the concept of presence includes state of mind and physical
proximity. Estate of Hulett,
6 Wis.2d 20, 26, 94 N.W.2d 127, 130 (1959); see also Estate of
Haugk, 91 Wis.2d 196, 206, 280 N.W.2d 684, 689-90 (1979). The state of mind requirement focuses on
"the witnesses' awareness that the other witness is signing the
testamentary document." Haugk,
91 Wis.2d at 206, 280 N.W.2d at 690.
A
person in whose presence an act is done must be informed of what is taking
place so that he actually knows what is being done; or the act is not done in
his presence, no matter how close to him it may be done. A will is not signed in the presence of one
who is attending to another matter and does not know what is taking place until
he is told later.
Hulett, 6
Wis.2d at 26, 94 N.W.2d at 130 (quoted source omitted). In Hulett, the will offered
into probate was invalid because, under the facts of the case, "[i]t was
clearly established that when each witness signed the document the other was
totally unaware of the signing ...."
Id. at 26, 94 N.W.2d at 131.
Here, the trial court
found that Schlehlein had signed the will as a witness before she called
Burnette into the room to sign as a witness.
Burnette testified that Schlehlein had already affixed her signature by
the time he arrived, but that because he had seen her signature "hundreds
of times," he did not ask her to verify her signature. These findings are not clearly erroneous
based upon the testimony adduced at trial.
However, they do not substantiate that the witnesses signed in the
presence of each other as required by § 853.03(2), Stats.
The facts found by the
trial court and the additional testimony of Burnette[4]
indicate that Burnette and Schlehlein did not execute the will in each other's
presence because Burnette was not present either physically or by state of mind
when Schlehlein signed. Burnette
testified that the office where he worked, Schlehlein's office and the
conference room or anteroom where the execution occurred were in close
proximity to each other.[5] However, he also testified that at the time
Schlehlein interrupted him to ask him to witness a document, he was "very
much involved" in a project for which he was trying to meet a deadline. He further described himself as harried and
unaware that a will was being executed in an adjoining room. He did not pay any attention to the document
he was signing.
Accordingly, the
requirements of § 853.03(2), Stats.,
were not satisfied, and the trial court erred in concluding otherwise. We independently conclude that the will
offered by Lindhal was not validly executed, and therefore the trial court
erred in admitting it into probate.
Because the will leaving
the decedent's residence to Lindhal is invalid, this court must review
Lindhal's entitlement to the residence by virtue of the trial court's
nullification of the quitclaim deed she executed on September 2,
1992—approximately one year before the decedent's death and several days after
she and the decedent gave a second mortgage on the house to the bank. The proceeds of the second mortgage were
used to pay off Lindhal's and the decedent's personal obligations and
improvements made to the home.
The court nullified the
quitclaim deed after finding that the decedent and Lindhal did not intend for
Lindhal to part with her interest in the property. Rather, the court considered language in the transfer tax return,[6]
the circumstances surrounding the second mortgage and Lindhal's testimony
regarding the oral agreement with the decedent and found that the parties
intended to shield the property against possible judgment liens arising from
Lindhal's involvement in an Illinois business and to avoid the transfer tax.
Lindhal testified at
trial that the decedent "never bought me out," notwithstanding that
she executed a quitclaim deed. She
testified that the quitclaim deed was solely intended to remove her name from
the property and that if the decedent died the house would be hers.[7] She contended that she paid $100 per week in
cash to the decedent after she moved out of the house at the end of September
1992 and that this was to be applied to her share of house expenses. Lindhal testified that after she signed the
quitclaim deed, she expressed a concern about her future interest in the
property should anything happen to the decedent. The decedent told her that he had provided for her in his
will.
"[The] first step
in construction of a deed is to examine what is written within the four corners
of the deed, for this is the primary source of the intent of the parties. If the language of the deed is unambiguous,
then its construction, as the construction of other unambiguous instruments, is
purely a question of law for the court, but when there is an ambiguity, the
sense in which the words therein are used presents a question of fact. Also, where a deed is susceptible to only
one interpretation, extrinsic evidence may not be referred to in order to show
the intent of the parties." Rikkers
v. Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25, 27 (1977) (citations
omitted). "[P]arol evidence is not
admissible to vary or explain the terms of a deed, and the acts of the parties
are not admissible to show a practical construction where the language of the
deed is neither ambiguous nor indefinite." Kleih v. Van Schoyck, 250 Wis. 413, 419, 27 N.W.2d
490, 493 (1947).
The language of the deed
is not ambiguous. It does not reserve
any interest to Lindhal or contain any language indicating that it was other
than a full transfer of her rights in the residence to the decedent. The trial court erred in considering
extrinsic evidence (i.e., execution of a second mortgage, language in the
transfer tax return and Lindhal's testimony regarding the parties' oral
agreement) as a basis for invalidating the quitclaim deed.[8] We hold that the quitclaim deed was valid
and enforceable against Lindhal.
Lindhal's remaining
claims are premised on her November 1993 claim to personal property and her
July 1994 amended claim alleging that she paid one-half of the down payment on
the residence and monthly payments for upkeep.
The claim stated: "Under
the legal principles of quantum meruit and quasi-contract and equity, [Lindhal]
is entitled to the single family residence." Because the trial court upheld the will submitted by Lindhal and
invalidated the quitclaim deed, there was no reason to address any of Lindhal's
other claims against the estate.[9]
On appeal, Lawson argues
that the trial court erred in permitting Lindhal to file an amended claim. Lawson also argues that the trial court
should have granted him a mistrial because the court read several depositions,
large portions of which were not in evidence at the trial in this matter. Because we remand for further proceedings,
we decline to address these arguments.
In considering the balance of Lindhal's claims in light of the fact that
the decedent died intestate and Lindhal quitclaimed her interest in the
residence, the court on remand may address these arguments and such issues as
it believes are necessary and hold such proceedings as it believes are
necessary to decide Lindhal's claims to personal property and real estate in
light of our decision.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] If there was no valid will, Lawson would be the decedent's heir under the rules of intestate succession. See §§ 851.09 and 852.01(1)(d), Stats.
[3] We refer to the 1993-94 statutes. Although § 853.03, Stats., was amended by 1993 Wis. Act 486, the amendments merely made gender-neutral the language appearing in the statute prior to that date. No substantive changes were made in the language. We recite the language from the current statute.
[4] Burnette's testimony regarding the circumstances under which he witnessed the document was uncontroverted and the trial court found that his testimony was credible. Therefore, we consider that testimony in arriving at our legal conclusion that the will was not validly executed.
[5] While much was made at trial of the physical layout of the offices in which the will was executed, physical proximity is not the only consideration in determining the presence of witnesses. See Estate of Hulett, 6 Wis.2d 20, 26, 94 N.W.2d 127, 130 (1959).
[6] The transfer tax return stated that the transfer was a "reformation of prior recorded conveyance." The trial court speculated that this language evinced Lindhal's intent not to part with her interest in the property.
[7] Lindhal's November 1993 claim against the estate alleged the existence of an oral agreement with the decedent in which she would own the real estate in the event of his death.