Arnold R. Kaiser v. Townline CTH-N LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 4, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP58 Cir. Ct. No. 2001IN131

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE ESTATE OF RAYMOND J. KAISER:

ARNOLD R. KAISER AND KATHERINE G. CHRISTECK,

APPELLANTS,

V.

TOWNLINE CTH-N LLC AND CHRISTINE OLSEN, SUCCESSOR PERSONAL
REPRESENTATIVE FOR THE ESTATE OF RAYMOND J. KAISER,

RESPONDENTS.

APPEAL from an order of the circuit court for Marathon County:
MICHAEL K. MORAN, Judge. Reversed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Arnold Kaiser (“Arnold”) and Katherine Christeck
(“Katherine”) (collectively, “the Heirs”) appeal an order striking a deed restriction
limiting the use of real property that had belonged to their father, Raymond Kaiser
No. 2023AP58

(“Raymond”). After Raymond’s death in 2001, his Estate sold the property to a
third party in 2002 subject to the deed restriction. The property was ultimately
purchased by Townline CTH-N LLC (“Townline”) in 2019. Fifteen years after the
Estate had closed in 2005, Townline sought to reopen the Estate to have the circuit
court remove the deed restriction by challenging the personal representatives’
authority to include it when selling the property.

¶2 The Heirs argue in their appellate briefs that Townline lacks standing
to reopen the Estate; the personal representatives had authority to place the
restriction on the property when it was sold; and, even if they did not have such
authority, the circuit court erroneously struck the restriction as a remedy. We do
not directly address the Heirs’ arguments in these regards, although our focus
implicates some of their arguments. Instead, and following an oral argument, we
reverse the court’s order on the ground that public policy bars Townline’s untimely
motion to reopen the Estate to pursue its claim.

¶3 Public policy calls for finality in estate administration as well as
having a sensible and just stopping point for challenging closed estates. Here, a
combination of factors leads us to conclude, as a matter of law, that such finality
outweighs a decision on the merits of Townline’s current challenge to the
administration of the Estate. Specifically, we consider: (1) the amount of time that
passed between the closing of the Estate and Townline’s motion to reopen;
(2) Townline’s having had no interaction with the Estate, paired with the relief that
Townline sought by reopening the Estate; (3) the alternative method available for
Townline to obtain that or similar relief; and (4) intervening circumstances that have
made it inequitable to reopen the Estate for the specific relief sought. All of these
factors weigh against disturbing the finality of an estate administration that closed
a decade and a half earlier.

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BACKGROUND

¶4 Raymond died on March 26, 2001, and was survived by his two
children, Arnold and Katherine.1 In August 2001, Arnold and Attorney
F.E. Bachhuber, Jr., filed an application for informal administration of the Estate
and sought their designation as co-personal representatives.2 On the application,
both Arnold and Bachhuber attested, under oath, that they “made diligent inquiry”
and were “unaware of any unrevoked will of the decedent and believe[d] that the
decedent died leaving no will.” They were appointed as co-personal representatives
of the Estate, but Bachhuber handled the administration of the Estate.

¶5 The Estate’s assets included two adjacent parcels of real property in
Wausau, Wisconsin: a 1.1-acre parcel with a house and a barn (“the House
Property”), and an approximately thirty-four-acre parcel of vacant farmland (“the
Property”). In July 2002, Bachhuber sent a letter to Arnold with appraisals for the
two parcels completed by George Woodrich.3 The appraisals valued the House
Property at $50,000 and the Property at $275,125. The Estate’s inventory listed the
combined value of the two properties.

¶6 In September 2002, William Schumacher “and/or [his] assigns” made
an offer to purchase the Property from the Estate for $300,000. In the offer,
Schumacher agreed to a deed restriction “allowing that the property, if developed in
the future, will only be developed as single family residential or residential
condominium.” Arnold informed Bachhuber that he had received Schumacher’s

1
Raymond’s wife predeceased him in 1977.
2
Attorney Bachhuber died in June 2016.
3
Woodrich is also deceased.

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No. 2023AP58

offer to purchase the Property and that Arnold wanted to accept the offer with some
additional changes proposed by him and Katherine. One of the requested changes
was to include a deed restriction “limiting future use to agricultural or single family
homes only, no condos, townhomes, apartments, industrial, etc. This is required to
match future use to the existing development around the farm.” Ultimately, Arnold
and Bachhuber made a counteroffer to Schumacher proposing that the deed
restriction be changed to limit future use of the Property to “single family residential
use only.”

¶7 On November 27, 2002, the Estate sold the Property to Billgee LLP
(“Billgee”), an assignee of Schumacher, for $300,000. On the same day, Bachhuber
conveyed the Property to Billgee by a personal representative’s deed. The deed
included the restriction at issue here (“the Restriction”), which read: “THE USE
OF THE PROPERTY HEREBY CONVEYED IS RESTRICTED TO SINGLE
FAMILY RESIDENTIAL OR AGRICULTURAL USAGE ONLY. THIS
RESTRICTION RUNS WITH THE LAND.”

¶8 In November 2003, Bachhuber conveyed the House Property to
Katherine also by a personal representative’s deed.4 This deed did not include any
restriction on the House Property’s use. Katherine received the House Property as
an Estate distribution, but she never moved into the property. She eventually sold
and conveyed the House Property in November 2006 to Paul and Melissa Schmidt
for $104,000.5 The deed for this sale included a restriction similar to the Restriction

4
At some point before the sale of the Property in 2002, its size was reduced to
approximately thirty-three acres, and the House Property’s size was conversely increased to 2.2
acres. This change was done because Katherine wanted to own the House property with it being
2.2 acres in size, instead of the original 1.1 acres.
5
At a July 2022 hearing, Katherine testified that she sold the House Property because her
husband’s health had deteriorated and they would be unable to maintain the property.

4
No. 2023AP58

in the deed conveying the Property to Billgee. The House Property restriction
provided that “the use of the property hereby conveyed is restricted to single family
residential or agricultural use only. This restriction shall be permanent, and shall be
a covenant running with the land.”

¶9 The Estate was completely administered and closed in July 2005. The
Property subsequently went through several sales and transfers between 2006 and
2019. In January 2006, Billgee sold and conveyed the Property to
WM Development LLC (“WM Development”). Before this sale, however, the
Property was assembled with other parcels in the neighborhood into a single lot of
81.76 acres. The single, assembled lot was sold to WM Development for
$1,962,500. In April 2013, and as a result of a foreclosure, WM Development
conveyed portions of the lot that were undeveloped or sold, which included the
Property, to ABS 1 LLC, a wholly owned subsidiary of Investor’s Community Bank
(“ABS 1”). ABS 1 sold each of the other undeveloped or unsold portions of the lot
before it sold the Property. In March 2019, ABS 1 sold and conveyed the final piece
of the lot—the Property—to Townline for $210,000.

¶10 In September 2020, Townline moved to reopen the Estate, questioning
the legal basis for the Restriction and seeking a determination of the personal
representatives’ authority to place the Restriction on the deed to the Property. If the
personal representatives had no such authority, Townline requested that the circuit
court strike the Restriction. Several rounds of briefing then occurred, in which both
the Heirs and Townline raised various arguments regarding whether the Estate
should be reopened and whether the personal representatives had the authority to
include the Restriction when the Estate sold the Property. In one of the briefs, the
Heirs’ counsel noted his discovery of Raymond’s Will (“the Will”) in Bachhuber’s
old file relating to the Estate. The Will is dated December 18, 1992, and one of the

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provisions left the “rest and residue” of the Estate to Arnold and Katherine “in equal
shares.” The Will did not include any language indicating Raymond’s desire for a
restriction on the Property’s use.

¶11 In addition to arguing that the personal representatives had authority
to place the Restriction on the Property, the Heirs argued that the Estate should not
be reopened for several reasons. First, the Heirs contended that numerous statutes
of limitations prevented reopening the Estate, including WIS. STAT.
§§ 865.18-865.19 (2021-22),6 WIS. STAT. § 893.43, and WIS. STAT. § 706.09(1)(f).
Second, the Heirs argued that Townline did not have standing to reopen the Estate
because Townline was not a “person interested” as defined in WIS. STAT.
§ 851.21(1), and Townline had no connection to the Estate. Third, the Heirs
asserted that laches barred Townline from reopening the Estate because: (1) for the
past eighteen years, the Property had been sold and purchased by several parties
who never claimed that the Restriction was invalid; (2) Townline knew about the
Restriction when it purchased the Property; and (3) the Heirs were prejudiced by
having to incur fees to prove the Restriction’s validity in an estate that was closed
in 2005.

¶12 Finally, the Heirs argued that WIS. STAT. §§ 806.07 and 879.31 did
not allow Townline to reopen the Estate and that the “facts and equities of the case
favor finality.” The Heirs acknowledged that when an informally administered
estate concludes, it is not closed by a final judgment but, rather, by stipulation or
agreement of the personal representative and the interested parties. In any event,
the Heirs contended that the Restriction was not a mistake and that no fraud or

6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP58

misconduct had occurred. See § 806.07(1)(a), (c). Even if fraud or misconduct had
occurred, the Heirs asserted that those claims were barred under the one-year
limitations period in § 806.07(2).

¶13 Further, the Heirs argued that Townline had failed to allege “other
reasons justifying relief” and that Townline had not brought its motion to reopen
within a reasonable time. See WIS. STAT. § 806.07(1)(h), (2). Specifically, the
Heirs contended that the circumstances of this case were not extraordinary or unique
because the Property was sold and purchased by subsequent parties that never
questioned the Restriction’s validity and because Townline purchased the Property
with knowledge of the Restriction.

¶14 Townline, in contrast, argued that none of the statutes of limitations
cited by the Heirs applied to the relief Townline was seeking and that, even if they
did apply, those statutes contained fraud exceptions. Townline also argued that the
Heirs had no standing to challenge Townline’s motion because the Heirs never
owned the Property, had not resided in Wisconsin for several years, and were no
longer “persons interested” under WIS. STAT. § 851.21(2). As to laches, Townline
argued that it did not unreasonably delay in bringing its motion to reopen because it
did so approximately eighteen months after it purchased the Property and that the
Heirs had not suffered any prejudice as a result of that delay.

¶15 Townline further contended that neither WIS. STAT. § 806.07 nor
WIS. STAT. § 879.31 applied to the relief it sought because the Estate was closed by
a sworn statement from the personal representative rather than a final order or
judgment; therefore, the Estate’s closing did not constitute a final judgment or order
to which § 806.07 could apply. Assuming a final order or judgment was entered for
the Estate, Townline asserted that this case did present extraordinary and unique

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No. 2023AP58

circumstances justifying relief pursuant to §§ 806.07(1)(h) and 879.31. Those
circumstances, it argued, were: (1) that Arnold, as a personal representative,
directed Bachhuber, the co-personal representative, to exceed his authority by
placing the Restriction on the Property based on Arnold’s belief that the Restriction
was what Raymond would have wanted; and (2) that Arnold filed a sworn statement
that the Will did not exist when, in fact, Arnold knew that there was a Will and that
it was never filed. Townline further claimed that Arnold’s conduct regarding the
Will raised an inference of fraud and that, based on this conduct, the Restriction was
void ab initio. Finally, Townline argued that it brought its motion within a
reasonable time because, again, it moved to reopen the Estate approximately
eighteen months after purchasing the Property.

¶16 It appears that the circuit court orally granted Townline’s motion to
reopen the Estate at a March 15, 2021 hearing and subsequently issued a written
order granting the motion. The transcript of the March 15 hearing, however, is not
part of the record on appeal. Thus, we do not know the specific basis on which the
court granted the motion to reopen. At oral argument, the parties were asked to
recount that reasoning, but both the Heirs and Townline responded only that the
court had decided the issue early on in the case at a separate hearing.

¶17 At subsequent hearings in April 2021 and July 2022, Arnold testified
about his earlier discovery of the Will. Arnold stated that when Raymond died, he
searched for a will in Raymond’s safe deposit box, in Raymond’s desk, and
throughout Raymond’s house, but he could not find one. At some point after the
sale of the Property but before the Estate was closed, he found the Will in his own
safe deposit box. Arnold immediately sent the Will to Bachhuber, but neither of
them ever filed it in the Estate proceedings.

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No. 2023AP58

¶18 At the April 2021 hearing regarding the appointment of a personal
representative and the discovery of the Will, the circuit court reasonably expressed
its concerns with Arnold’s tardy discovery of the Will and Bachhuber’s failure to
file the Will. Because of those concerns, the court disqualified Arnold and
Katherine as personal representatives based on “either an unknowing complicity or
a knowing complicity with what I think was bad faith by not filing the [W]ill at the
time and by not even afterwards presenting [the Will] as required under the statute.”
The court then appointed Attorney Christine Olsen as successor personal
representative to the Estate.

¶19 In July 2022, the circuit court held an evidentiary hearing regarding
the validity of the Restriction. Arnold testified that he and Katherine wanted to
include a restriction limiting future use of the Property to agricultural or
single-family homes because that use was what their parents wanted.7 Upon
questioning from the court, Arnold testified that he and Bachhuber discussed
deeding the Property directly to the Heirs and then selling the Property, but
Bachhuber told him it would be a “waste of money” to do so. On cross-examination,
Arnold testified that neither he nor Bachhuber made any significant efforts to obtain
a better purchase price than what Schumacher offered for the Property. Katherine
testified about her desire to own the House Property and how she eventually sold it
to the Schmidts. She further testified that Arnold had informed her of the Will, but
she could not recall when he did so.

7
Arnold had also testified to this desire on the part of his parents at the April 2021 hearing.
Specifically, Arnold testified that he “asked Mr. Bachhuber if there was a way to honor the interest
of my parents, both my mother and father, that the land be used either as a farm or single family
homes and he said yes, there is.”

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No. 2023AP58

¶20 Finally, Gary Guerndt, the sole member of Townline, testified that he
knew about the Restriction before buying the Property and that, before purchasing
the Property, Townline had two title companies examine the Restriction. Based on
those investigations, Guerndt testified that he believed the Restriction “was put on
in the wrong process and it wasn’t legally binding.” Despite his belief that the
Restriction was invalid, Guerndt further testified that its existence did not impact
the price he paid for the Property. He stated that the plan for the Property was for
mixed-use development and that he wanted to check if the Restriction was valid
before starting to develop the Property because he did not want to start developing,
have someone contest the development, and then get “shut down.” Guerndt further
testified that neither the Restriction nor his belief in its invalidity affected his
decision to buy the Property.

¶21 The circuit court issued a written decision striking the Restriction.
The court concluded that the original personal representatives exceeded their
authority by placing the Restriction on the Property. The court also found that the
personal representatives did not act with due diligence to obtain the highest price
for the Property and failed to establish that the Restriction increased the Property’s
value. The Heirs now appeal.

DISCUSSION

¶22 Townline asks us to affirm the circuit court’s order granting
Townline’s request to strike the Restriction. As noted, this order followed the
reopening of the Estate—which had been closed for fifteen years—and resolved
Townline’s challenge to the personal representatives’ authority to place the
Restriction on the Property and the Restriction’s overall validity. We are not aware
of any controlling precedent addressing a motion by a party that acquires real

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No. 2023AP58

property previously sold by an estate to reopen that estate in order to challenge
anything related to that property. We are also unaware of any case law from other
jurisdictions in which such a situation has been addressed. There also appears to be
little case law, if any, regarding if and when a motion to reopen an estate is too late
in time after an estate closes.

¶23 Initially, both the Heirs and Townline argued on appeal whether
Townline had standing to challenge the Estate’s administration, but they focused
most of their briefing on the merits of the challenge—i.e., the validity of the Estate
including the Restriction in the deed and whether the circuit court’s remedy striking
the Restriction was appropriate. We requested oral argument from the parties on
standing and other issues that we believed were implicated in this seemingly novel
case. As explained herein, we base our decision largely on matters discussed during
oral argument.

¶24 At oral argument, Townline stated that it sought to reopen the Estate
for the limited purpose of removing the Restriction, not to challenge the entire
administration of the Estate. Townline argued that, from a policy standpoint, it
sought to preserve the integrity of the earlier, informal probate proceedings by
holding the personal representatives to their duty to follow Raymond’s intent, which
was silent regarding any restrictive covenant on the Property. The Heirs, on the
other hand, argued that allowing Townline to reopen the Estate now to remove the
Restriction would call into question the finality of any estate. According to the
Heirs, the result would be that estates would always “be open” and subject to
readministration.

¶25 Townline and the Heirs present valid, competing concerns with
allowing challenges to estate administration under the circumstances present in this

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case. Ultimately, we conclude that there must be a sensible and just point when
challenges to estate administration end. Public policy calls for eventual finality in
estate administration, and, in this situation, we conclude that public policy bars
Townline’s claim challenging the administration of the Estate. In reaching this
conclusion, we find support in the probate statutes addressing the importance of
completing estate administration in a timely manner, the emphasis on finality when
determining whether to reopen judgments under WIS. STAT. § 806.07, the factors
considered in reopening judgments under § 806.07(1)(h), and the equitable doctrine
of laches.

¶26 To be sure, we are sensitive to the importance of the underlying legal
rights at issue, including otherwise potentially valid claims aimed at protecting those
rights. In reaching our holding, we pass no judgment on the underlying merits of
the parties’ claims or defenses, as well as on the circuit court’s decisions regarding
those issues. We conclude only that Townline’s challenge, in this case, has come
too late.

I. Probate procedures in general

¶27 We begin by considering the particular context at play: probate
proceedings. In doing so, we accomplish two things. First, this context assists us
in weighing the competing interests advanced in this case. Second, we can properly
understand how closed probate proceedings, in general, will be impacted by our
holdings in this case.

¶28 Probate proceedings are a series of special proceedings relating to the
administration of a decedent’s estate, whether testate (i.e., when a valid will exists)
or intestate (i.e., when such a document is absent). See Sanders v. Estate of
Sanders, 2008 WI 63, ¶26, 310 Wis. 2d 175, 750 N.W.2d 806; see also WIS. STAT.

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No. 2023AP58

chs. 851-879. During an informal administration, which may be used whether the
decedent died testate or intestate, the decedent’s estate is administered “without
exercise of continuous supervision by the court,” and the administration largely
involves interactions by the appointed personal representative of the estate, with
occasional action by the probate registrar.8 WIS. STAT. § 865.01; see also WIS.
STAT. § 865.10. Nevertheless, informal administration proceedings are “circuit
court proceedings, records of which shall be kept in the same manner as they are
kept for formal proceedings.” Sec. 865.01. Informal administration is also subject
to the provisions in chs. 851 to 879 that are not inconsistent with ch. 865.
Sec. 865.01.

¶29 An application for informal administration must provide the
information required in WIS. STAT. §§ 879.01 and 856.09, and the application must
include statements regarding the decedent’s will and whether the decedent died
testate or intestate. If the decedent died intestate, then the applicant must aver that
he or she “has made diligent inquiry and is unaware of any unrevoked testamentary
instrument of the decedent.” WIS. STAT. § 865.06(1)-(3). “Upon appointment and
qualification [of the personal representative], … the estate shall be administered

8
As the term is used in WIS. STAT. chs. 851 through 879, “‘[c]ourt’ means the circuit court
or judge assigned to exercise probate jurisdiction.” WIS. STAT. § 851.04.

Probate registrars are court officials whose functions include “advis[ing], within their
competence, in the preparation of any of the documents required to be prepared and filed by the
personal representative” under WIS. STAT. ch. 865. WIS. STAT. § 865.065(1)-(2). “Administrative
action by the probate registrar is not action by the court.” WIS. STAT. § 865.01.

A personal representative is “any person to whom letters to administer a decedent’s estate
have been granted by the court or by the probate registrar under [WIS. STAT.] ch. 865, but does not
include a special administrator.” WIS. STAT. § 851.23.

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No. 2023AP58

under [WIS. STAT. ch. 865] unless or until superseded or suspended by formal
proceedings.”9 WIS. STAT. § 865.08(4).

¶30 The personal representative settles and distributes the decedent’s
estate and, except as provided by WIS. STAT. ch. 865 or required by interested
persons, does so “without adjudication, order or direction of the court.” WIS. STAT.
§ 865.10(1); see also WIS. STAT. ch. 857 (providing the powers and duties of
personal representatives). At any time, however, the personal representative may
invoke the court’s authority “to resolve questions concerning the estate or its
administration.” Sec. 865.10(1). As part of his or her duties, the personal
representative must “prepare an inventory of property owned by the decedent at the
time of death,” WIS. STAT. § 865.11(1), and he or she must do so within six months
of appointment, WIS. STAT. § 858.01.

¶31 The personal representative may also pay claims against the
decedent’s estate, “whether filed as a claim or not,” and he or she must do so “on or
before the deadline for filing a claim under [WIS. STAT. §] 859.01, or at any time
with the consent of the heirs or beneficiaries affected by the payment.” WIS. STAT.
§ 865.13. The probate registrar, by order, sets the deadline for filing claims against
the decedent’s estate upon receiving the application for informal administration.
Sec. 859.01. Such filings must be prompt, as the date set “shall be not less than 3
nor more than 4 months from the date of the order.” Id. Subject to the exceptions
in WIS. STAT. § 859.02(2), claims not filed by the set deadline “are barred against
the estate, the personal representative and the heirs and beneficiaries.”

9
Formal proceedings are judicial proceedings before the circuit court involving the
administration of the decedent’s estate. WIS. STAT. § 865.03(1). A demand for formal proceedings
suspends informal administration as to the issues referred to in the demand and suspends the
personal representative’s powers “in respect thereto until the same are reinstated by the court.”
Sec. 865.03(2).

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No. 2023AP58

Sec. 859.02(1); see also WIS. STAT. § 859.15 (prohibiting, with exceptions, claims
that are “barred by any statute of limitations at the time of the decedent’s death”).

¶32 Once informal administration is completed, a personal representative
may close the estate as provided in WIS. STAT. ch. 863 or WIS. STAT. § 865.16.
Sec. 865.16(1). To close an estate as provided in § 865.16, the personal
representative must file with the probate registrar a verified statement that the
personal representative has: (1) given notice to interested persons and creditors that
the deadline for filing a claim has passed; (2) fully administered the decedent’s
estate and disclosed the arrangements made to pay outstanding claims, expenses, or
taxes; (3) provided a copy of the sworn statement to the estate’s distributees,
creditors, and claimants; and (4) provided a full account of the administration “to
the distributees whose interests are affected thereby.”10 Sec. 865.16(1)(a)-(c).

¶33 Once a personal representative closes an estate under WIS. STAT.
§ 865.16, he or she must timely file receipts from the distributees with the probate
registrar in the manner provided in WIS. STAT. § 863.41.11 WIS. STAT. § 865.21.
The personal representative’s appointment then terminates “[i]f no proceedings
challenging the statement or otherwise involving the personal representative are
pending in the court 6 months after the statement is filed.” Sec. 865.16(2). In
particular, and relevant to this case, WIS. STAT. § 865.18 bars claims by interested
persons and creditors against the personal representative for breach of fiduciary duty

10
A “distributee” is “any person to whom property of a decedent is distributed other than
in payment of a claim, or who is entitled to property of a decedent under the decedent’s will or
under the statutes of intestate succession.” WIS. STAT. § 851.07.
11
The personal representative must file receipts with the probate registrar within 120 days
after filing the sworn statement closing the estate. See WIS. STAT. § 863.41 (“Within 120 days after
the final judgment is signed the personal representative shall file with the court receipts from
distributees for all personal property assigned in the final judgment, unless the court extends the
time.”); see also infra ¶¶35, 59 n.15.

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“unless a proceeding to assert the same is commenced within 6 months after the
filing of the closing statement,” but it does not bar “recovery for fraud,
misrepresentation, or inadequate disclosure related to the settlement of the
decedent’s estate.” Id.

¶34 Notably, “[a]ll estates are to be completed as soon as reasonably
possible and without unnecessary delay.” WIS. STAT. § 863.33 (emphasis added).
If an estate is not closed within eighteen months after filing a petition for either
formal or informal administration, and there is no order extending the time to
complete administration, a personal representative must show cause as to why the
estate has not been closed. WIS. STAT. § 863.35(1)-(2).

¶35 Once closed, an estate may be reopened under WIS. STAT. § 879.31,
which provides that “[o]n motion, notice to adverse parties and hearing, the court
may relieve a party or legal representative from a judgment or orders of the court or
the party’s stipulation as provided in [WIS. STAT. §] 806.07.” See Gittel v. Abram,
2002 WI App 113, ¶15, 255 Wis. 2d 767, 649 N.W.2d 661 (noting that § 879.31
adopts the provisions of § 806.07 for probate proceedings). It appears these
provisions apply to closed informal probate proceedings. See WIS. STAT. § 865.01
(providing that the provisions in WIS. STAT. chs. 851 through 879, that are not
inconsistent with ch. 865, apply to informal administration).

¶36 WISCONSIN STAT. § 806.07(1) provides the grounds upon which a
circuit court may grant relief to a party from a judgment, order or stipulation.
Sec. 806.07(1)(a)-(h). Motions made under this statute “shall be made within a
reasonable time, and, if based on [§ 806.07](1)(a) or (c), not more than one year
after the judgment was entered or the order or stipulation was made.”
Sec. 806.07(2).

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¶37 Given the foregoing context, Wisconsin law is clear that all estate
administrations must be “completed as soon as reasonably possible and without
unnecessary delay.” WIS. STAT. § 863.33. The procedures for informal estate
administration in WIS. STAT. ch. 865 and the deadlines in those procedures
regarding the inventory, filing and handling of claims, and closure of an estate show
that estate administration should be completed in a timely manner. And both formal
and informal administrations have dates requiring court action due to inaction by
relevant parties. WIS. STAT. § 863.35(1)-(2), WIS. STAT. § 865.16(2) (terminating
the personal representative’s appointment when no action has been taken by anyone
seeking to challenge the personal representative).

¶38 When read together, and with the limited reasons and timing allowed
under the law for reopening an estate (as discussed below), these statutes discussed
above—as well as corresponding case law—broadly reflect policies favoring
efficient estate administration and closure, including finality in estate
administration.

II. Finality in estate administration

¶39 Generally speaking, when determining whether to reopen a judgment,
order or stipulation under WIS. STAT. § 806.07, finality is an important
consideration because § 806.07 seeks to “achieve a balance between the competing
values of finality and fairness in the resolution of a dispute.” State ex rel. M.L.B.
v. D.G.H., 122 Wis. 2d 536, 542, 363 N.W.2d 419 (1985). Thus, in determining
whether to reopen an estate under WIS. STAT. § 879.31, the policy favoring finality
in estate administration becomes an important consideration. And, when
considering fairness in the resolution of a dispute—such as the validity of a

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restrictive covenant included on a deed for real property sold by an estate—we must
be cognizant of the special nature of probate proceedings, as outlined above.

¶40 As noted, an estate may be reopened for the reasons provided in WIS.
STAT. § 806.07, which is the general statute in Wisconsin for obtaining relief from
judgments, orders or stipulations. See WIS. STAT. § 879.31. As relevant to this case,
those reasons for relief include: “[m]istake, inadvertence, surprise, or excusable
neglect”; “[f]raud, misrepresentation, or other misconduct of an adverse party”;
“[t]he judgment is void”; and “[a]ny other reasons justifying relief from the
operation of the judgment.” Sec. 806.07(1)(a), (c)-(d), (h).

¶41 We now look at how Wisconsin courts have applied the grounds in
WIS. STAT. § 806.07 to determine whether to reopen closed estates. Our supreme
court has held that probate proceedings may be reopened due to a mistake of fact,
see Moon v. Cullen, 205 Wis. 648, 658-59, 238 N.W. 845 (1931), or a void
judgment, see Kalitzky v. Kalitzky’s Estate, 255 Wis. 442, 445-46, 39 N.W.2d 357
(1949).

¶42 In Moon, our supreme court allowed the probate court to vacate and
revise its original distribution order three years after entering the order. Moon, 205
Wis. at 650, 658-59. It did so because the administrator withheld the fact that the
decedent had a living heir (a daughter), causing the court to conclude that the
distribution order was entered on a materially “mistaken notion of the facts.” Id. at
656, 658. In Kalitzky, our supreme court allowed the decedent’s son to reopen
probate proceedings five years after the probate court entered a final order. Kalitzky,
255 Wis. at 444, 446. The court concluded that the probate court’s order was void
with respect to the decedent’s son for a lack of jurisdiction over him because service
on the court-appointed attorney for the decedent’s son—who had been appointed

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without the son’s knowledge or consent—was not “a satisfactory legal substitute for
service” on the decedent’s son. Id. at 445-46.

¶43 Our supreme court has also upheld a probate court’s decision denying
a petition to reopen proceedings despite allegations of fraud, misrepresentation or
misconduct. See Steuber v. Conway, 270 Wis. 426, 433-34, 71 N.W.2d 272 (1955).
In Steuber, the decedent’s niece—the will’s appointed personal representative—
died in an accident less than a month after the estate closed. Id. at 429. Thereafter,
the decedent’s widow sought to reopen the decedent’s estate for readministration on
the basis that the niece had committed fraud. Id. at 430. Our supreme court
concluded that the probate court did not erroneously exercise its discretion by
refusing to reopen the decedent’s estate for readministration because the widow
received the advice of counsel in settling a dispute with the niece regarding the
estate’s administration, the widow was aware of all the material facts surrounding
the validity of two deeds conveying real estate to the niece that the widow
questioned—including the fact that the niece’s name in the deed was typed over a
name that had been erased—at the time of the settlement, and the widow had not
questioned the settlement until after the niece died. Id. at 433-34. The court also
noted that the widow was pursuing a separate action for the same relief based on the
same facts. Id. at 434.

¶44 Turning back to the general principles for relief from a closed case,
finality is particularly important when determining whether to grant relief for “[a]ny
other reasons justifying relief from operation of the judgment” pursuant to WIS.
STAT. § 806.07(1)(h), commonly referred to as “the catch-all” provision. See
M.L.B., 122 Wis. 2d at 550; see also Miller v. Hanover Ins. Co., 2010 WI 75, ¶32,
326 Wis. 2d 640, 785 N.W.2d 493 (referring to § 806.07(1)(h) as a “catch-all”
provision allowing relief from a judgment); Sukala v. Heritage Mut. Ins. Co., 2005

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No. 2023AP58

WI 83, ¶9, 282 Wis. 2d 46, 698 N.W.2d 610 (same). Because of the importance of
finality in legal proceedings, our supreme court explained in M.L.B. that
§ 806.07(1)(h) “should be used sparingly” and “only when the circumstances are
such that the sanctity of the final judgment is outweighed by ‘the incessant
command of the court’s conscience that justice be done in light of all the facts.’”
M.L.B., 122 Wis. 2d at 550 (citation omitted). Such circumstances should not be
interpreted “so broadly as to erode the concept of finality” nor “so narrowly that
[§ 806.07(1)](h) does not provide a means for relief for truly deserving claimants.”
M.L.B., 122 Wis. 2d at 552.

¶45 Thus, when determining whether to grant relief under WIS. STAT.
§ 806.07(1)(h), a circuit court “should consider factors relevant to the competing
interests of finality of judgments and relief from unjust judgments.” M.L.B., 122
Wis. 2d at 552. These factors include: (1) “whether the judgment was the result of
the conscientious, deliberate and well-informed choice of the claimant”;
(2) “whether the claimant received the effective assistance of counsel”; (3) “whether
relief is sought from a judgment in which there has been no judicial consideration
of the merits and the interest of deciding the particular case on the merits outweighs
the finality of judgments”; (4) “whether there is a meritorious defense to the claim”;
and (5) “whether there are intervening circumstances making it inequitable to grant
relief.” Id. at 552-53.

¶46 Further contributing to the importance of finality—and of particular
importance to the case before us—is the requirement in WIS. STAT. § 806.07(2) that

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motions for relief from judgment be made within a reasonable time.12
Sec. 806.07(2). Whether a motion under § 806.07(1)(h) was made within a
reasonable time requires “a thorough review of all relevant facts.” State ex rel.
Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 627, 630, 511 N.W.2d 868 (1994).
Factors relevant to the reasonableness determination will vary from case to case, but
they will undoubtedly include “the reasons for the moving party’s delay” and the
prejudice to the party opposing the motion. Id. at 627. Relevant factors may also
include the same factors considered when determining whether to grant relief under
§ 806.07(1)(h). See Cynthia M.S., 181 Wis. 2d at 627-28.

¶47 Nevertheless, and as potentially relevant to the circumstances in this
case, WIS. STAT. § 806.07 “does not limit the power of a court to entertain an
independent action to relieve a party from judgment, order, or proceeding, or to set
aside a judgment for fraud on the court.” Sec. 806.07(2). “[A]lthough not regarded
with favor by the courts,” this provision allows a party to bring an independent
equitable action for relief where the “only time limitation is the equitable doctrine
of laches.” Walker v. Tobin, 209 Wis. 2d 72, 77, 79-80, 568 N.W.2d 303 (Ct. App.
1997) (citation omitted).

¶48 We thus also find cause to look to the equitable doctrine of laches in
determining whether a long-closed estate can be reopened, given that, as noted
earlier, probate proceedings are treated as a series of special proceedings prompted,
of course, by someone’s death. See Sanders, 310 Wis. 2d 175, ¶26. In a sense,
probate is both equitable and legal in nature. See Richardson v. Richardson,

12
A party may not circumvent the one-year time limit applicable to WIS. STAT.
§ 806.07(1)(a) and (c) by recharacterizing its claim as one brought pursuant to § 806.07(1)(h).
State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 552, 363 N.W.2d 419 (1985). However, the
reasonable time requirement does not apply to a § 806.07(1)(d) motion for relief from a void
judgment. Neylan v. Vorwald, 124 Wis. 2d 85, 100, 368 N.W.2d 648 (1985).

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No. 2023AP58

223 Wis. 447, 459, 271 N.W. 56 (1937) (noting that probate courts have the
authority “to recognize and apply equitable rules and principles in so far as they are
applicable to matters relating to the settlement of estates of decedents”); see also
State ex rel. Peterson v. Circuit Ct. of La Crosse Cnty., 177 Wis. 548, 553, 188
N.W. 645 (1922) (probate courts have “full jurisdiction in law as well as in equity
in respect to all matters involved in the settlement of the estates of deceased
persons”).

¶49 Laches considers whether a party has brought an equitable claim
within a reasonable time. See Wisconsin Small Bus. United, Inc. v. Brennan, 2020
WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. At the outset, we question whether
we could simply apply the doctrine of laches so as to deny the timeliness of
Townline’s attempt to reopen the Estate in this case. We believe that would be
improper. As we have already noted, the probate code expressly incorporates WIS.
STAT. § 806.07 as the applicable standard for deciding whether to reopen an estate.
In other words, there are existing statutory provisions that courts are instructed to
apply. Relatedly, laches is typically used in lieu of legislatively established statutes
of limitations or repose for claims where a codified limitations period does not exist.
See Walker, 209 Wis. 2d at 80. Accordingly, while we look at the doctrine’s
principles to inform our analysis, we are doubtful that laches applies, in and of itself,
to Townline’s motion to reopen.

¶50 The doctrine of laches bars relief “when a claimant’s failure to
promptly bring a claim causes prejudice to the party having to defend against that
claim.” Wisconsin Small Bus., 393 Wis. 2d 308, ¶11. It is based on the “notion
that equity aids the vigilant, and not those who sleep on their rights to the detriment
of the opposing party.” State ex rel. Wren v. Richardson, 2019 WI 110, ¶14, 389
Wis. 2d 516, 936 N.W.2d 587 (citation omitted). The party raising laches must

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prove three elements: “(1) a party unreasonably delays in bringing a claim; (2) a
second party lacks knowledge that the first party would raise that claim; and (3) the
second party is prejudiced by the delay.” Wisconsin Small Bus., 393 Wis. 2d 308,
¶12. Even if the party proves all three elements, “application of laches is left to the
sound discretion of the court asked to apply this equitable bar.” Id.

¶51 Whether a party’s delay in bringing a claim is reasonable varies “and
depends on the facts of a particular case.” Id., ¶14. An unreasonable delay is not
based on what a party knows, but what it “might have known with the exercise of
reasonable diligence.” Wren, 389 Wis. 2d 516, ¶20. “Where the question of laches
is in issue, the plaintiff is chargeable with such knowledge as he [or she] might have
obtained upon inquiry, provided the facts already known by him [or her] were such
as to put a [person] of ordinary prudence upon inquiry.” Id. (citation omitted).

¶52 Prejudice resulting from the delay also depends on the facts and
circumstances of a particular case, but it is “generally held to be anything that places
the party in a less favorable position.” Id., ¶32 (citation omitted). Prejudice may
be economic or evidentiary.13 Id., ¶33. Relevant here, evidentiary prejudice arises
when the plaintiff’s “delay in bringing an action has curtailed the defendant’s ability
to present a full and fair defense on the merits due to the loss of evidence, the death
of a witness, or the unreliability of memories.” Id., ¶33 (citation omitted). The
death of a key witness “is precisely the kind of thing laches is aimed at, particularly
where ‘the decedent’s knowledge is crucial to a party’s defense.’” Id., ¶34 (citation
omitted). Additionally, important documents “may have been misplaced or
destroyed.” Id. (citation omitted). Witness unavailability, however, may not always

13
Economic prejudice arises when the “costs to the defendant have significantly increased
due to the delay.” State ex rel. Wren v. Richardson, 2019 WI 110, ¶33 n.26, 389 Wis. 2d 516, 936
N.W.2d 587 (citation omitted).

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No. 2023AP58

be enough to satisfy the prejudice element, “for example, where the witness’s
potential testimony is of marginal importance.” Zizzo v. Lakeside Steel & Mfg. Co.,
2008 WI App 69, ¶21, 312 Wis. 2d 463, 752 N.W.2d 889.

III. Townline’s challenge to the Restriction’s validity by reopening the Estate
is barred as a matter of law.

¶53 We have engaged in the preceding survey of Wisconsin law to inform
us of the factors that are relevant to deciding whether to grant a party’s request to
reopen an estate that has been closed for a lengthy period of time. Based on our
consideration of these principles, we look to the amount of time that has passed
since an estate has closed, the party’s interaction with the closed estate paired with
the relief sought by challenging the estate’s administration, whether alternative and
more appropriate methods were available to obtain that relief, and other intervening
circumstances that would make it inequitable to reopen the estate for the relief
sought.

¶54 As an initial and important matter, we recognize that many of the
matters outlined above involve a circuit court’s exercise of discretion. See Cynthia
M.S., 181 Wis. 2d at 624 (reviewing the circuit court’s decision granting relief under
WIS. STAT. § 806.07 for an erroneous exercise of discretion); Wren, 389 Wis. 2d
516, ¶16 (reviewing de novo whether the party asserting laches proved all three
elements, but reviewing the circuit court’s decision to apply laches for an erroneous
exercise of discretion). We also recognize that the transcript with the circuit court’s
reasoning for reopening the Estate in this case is missing from the record, and we
thus assume that the transcript supports every fact essential to sustain the court’s
exercise of discretion. See Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273
N.W.2d 233 (1979) (“[T]he court will assume, in the absence of a transcript, that

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every fact essential to sustain the [circuit court]’s exercise of discretion is supported
by the record.”).

¶55 Despite these matters regarding our appellate review, we decide the
issue of whether to reopen the Estate as a matter of law, based on the particular facts
presented, the policy arguments presented by the parties, and, as we conclude below,
the public policy favoring eventual finality in estate administration.14 We believe
that the question of the overall validity of Townline’s motion to reopen the Estate
many years after its closure is fundamentally a matter of judicial policy that should
be resolved as a matter of law, given the particular circumstances of this case. In
this sense, we conclude that the circuit court erroneously exercised its discretion by
reopening the Estate, regardless of any reasoning it provided during the hearing. In
most cases seeking to reopen a closed estate, however, the issue is, and should be,
left to the circuit court’s discretion.

14
Wisconsin courts have used public policy to bar otherwise potentially valid claims in
other instances, most notably in the context of negligence cases. See Hoida, Inc. v. M&I Midstate
Bank, 2006 WI 69, ¶¶1-2, 43, 291 Wis. 2d 283, 717 N.W.2d 17 (barring a subcontractor’s
negligence claim against a disbursing agent on the public policy ground that allowing recovery
would place an unreasonable burden on the disbursing agent); Fandrey ex rel. Connell v. American
Fam. Mut. Ins. Co., 2004 WI 62, ¶1, 272 Wis. 2d 46, 680 N.W.2d 345 (concluding that a court
may bar liability under WIS. STAT. § 174.02 (the dog bite statute) based on public policy factors);
Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶6, 313 Wis. 2d 294, 752 N.W.2d 862
(“[E]ven if a viable negligence claim had been made, recovery would nonetheless be precluded on
the public policy ground that allowing recovery would send this court down a slippery slope with
no sensible or just stopping point.”).

Wisconsin courts have also barred the enforcement of contracts when those contracts
violated public policy. See Atkins v. Swimwest Fam. Fitness Ctr., 2005 WI 4, ¶30, 277 Wis. 2d
303, 691 N.W.2d 334 (barring the enforcement of an exculpatory waiver as contrary to public
policy); Heyde Cos., Inc. v. Dove Healthcare, LLC, 2002 WI 131, ¶26, 258 Wis. 2d 28, 654
N.W.2d 830 (concluding that a no-hire provision restricting employment opportunities of
employees without their knowledge and consent violated not only WIS. STAT. § 103.465 but also
public policy); see also Rosecky v. Schissel, 2013 WI 66, ¶68, 349 Wis. 2d 84, 833 N.W.2d 634
(“A court may declare a contract void on public policy grounds only if it determines, after weighing
the interests, that the interests in enforcing the contract are clearly outweighed by the interests in
upholding the policy that the contract violates.”).

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¶56 The above-referenced legal principles weigh against allowing
Townline to now reopen the Estate to challenge its administration with respect to
the Restriction. The very lengthy amount of time that had passed since the Estate
closed; Townline’s lack of any connection to the Estate’s administration and its
reasons for reopening the Estate; the alternative, and more appropriate, method
available to Townline for invalidating the Restriction; and several intervening
circumstances, including Bachhuber’s death and Townline’s knowledge of the
Restriction at the relevant times, are all factors that do not favor disturbing the
finality of the Estate.

¶57 As an initial and prominent consideration, the Estate had been closed
for more than fifteen years by the time Townline filed its motion to reopen. The
Estate was opened in 2002, the Property was sold and conveyed with the Restriction
in place that year, and the Estate was fully administered and closed in 2005.
Thereafter, the Property continued to be sold and conveyed with the Restriction in
place—and without challenges to the Restriction or to the Estate’s administration—
through Townline’s purchase of the Property in 2019. It was not until 2020 that
Townline sought to reopen the Estate to challenge the manner in which the Estate
placed the Restriction on the Property.

¶58 We note that Townline’s claim regarding Arnold and Bachhuber’s
handling of the Will sounds in fraud, insomuch as its primary argument is that the
personal representatives had no authority to place the Restriction on the deed to the
Property, and they failed to alert anyone regarding the Will that was located before
the Estate was closed. A motion to reopen the Estate on that basis, however, must
be made “not more than one year after the judgment was entered or the order or
stipulation was made.” See WIS. STAT. § 806.07(1)(c), (2). Here, such a timely

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No. 2023AP58

motion did not occur; rather, Townline brought its motion to reopen the Estate
fifteen years after the Estate closed.

¶59 Furthermore, Wisconsin law is clear that Townline cannot circumvent
the one-year time limit in WIS. STAT. § 806.07(2) for its largely fraud-based claim
by recharacterizing its allegations regarding the Will as “extraordinary
circumstances” justifying relief under § 806.07(1)(h). See M.L.B., 122 Wis. 2d at
552.15 Townline argues that its motion to reopen the Estate was timely because the
motion was brought approximately one year after it purchased the Property. But
this argument only accounts for the time that passed since Townline acquired the
Property; it does not consider the amount of time that has passed since the Estate

15
Townline’s claim in the circuit court that the Restriction was void ab initio arguably
falls under WIS. STAT. § 806.07(1)(d), which is not subject to the reasonable time requirement. See
Neylan, 124 Wis. 2d at 100. Townline, however, made no argument that its motion to reopen was
timely on the basis that it was not subject to the reasonable time requirement. To the extent
Townline means to argue that a fraud on the probate registrar is an independent equitable action
pursuant to § 806.07(2), we note that the time limit to bring such an action is determined by laches.
See Walker v. Tobin, 209 Wis. 2d 72, 79-80, 568 N.W.2d 303 (Ct. App. 1997); see also supra
¶¶47-49.

We also reject the notion advanced by Townline that WIS. STAT. §§ 879.31 and 806.07 do
not apply to informally administered estates. As we have noted, the provisions of WIS. STAT.
chs. 851 through 879, that do not conflict with WIS. STAT. ch. 865, apply to informal
administration. WIS. STAT. § 865.01; see supra ¶¶28, 35. And, § 865.01 specifically states that
informal administration proceedings are “circuit court proceedings” with formal court records.
Furthermore, all probate proceedings, including informal administration, are “a series of special
proceedings, which are terminated with a series of orders that are final orders.” Sanders v. Estate
of Sanders, 2008 WI 63, ¶26, 310 Wis. 2d 175, 750 N.W.2d 806. A final order in a special
proceeding “determines and disposes finally of the proceeding—one which, so long as it stands,
precludes any further steps therein. It bears the same relation to the proceeding in which it is
entered as the final judgment bears to an action.” Id., ¶27 (citation omitted). The personal
representative’s sworn statement closing an informally administered estate similarly determines
and disposes of the informal administration, given that the sworn statement confirms that the
decedent’s estate has been fully administered, that those interested in the estate’s administration
have received a full account of the administration, and that parties have been informed that the
deadline for filing claims has passed. See WIS. STAT. § 865.16(1)(a)-(c).

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No. 2023AP58

was closed. In this case, too much time has passed since the Estate’s closing, and
that amount of time weighs strongly against disturbing the finality of the Estate.

¶60 Next, as only a recent purchaser of the Property, Townline’s lack of
interaction with the Estate while it was open and its limited purpose for reopening
the Estate do not favor disturbing the Estate’s finality. Townline sought to reopen
the Estate for the purpose of invalidating the Restriction, yet Townline had an
alternative method for doing so without needing to directly disturb the finality of
the Estate’s administration. At oral argument, Townline acknowledged that it could
have “brought a quiet title action” to remove the Restriction.16 It argued, however,
that based on the personal representatives’ actions, the most appropriate way to
remove the Restriction was to reopen the Estate and challenge the personal
representatives’ authority to place the Restriction. Townline further added that it
did so to maintain the sanctity of informal probate proceedings.

¶61 Given Townline’s lack of interaction with the Estate, its limited
purpose for reopening the Estate is not compelling in this particular context of
reopening a long-closed estate, especially when Townline had a commonly
understood alternative method to remove the Restriction that would not have
required reopening the Estate and disturbing its finality. In such an action, Townline
could have made the same arguments it does now on the merits of the Restriction’s

16
WISCONSIN STAT. § 841.01(1) provides that “[a]ny person claiming an interest in real
property may maintain an action against any person claiming a conflicting interest, and may
demand a declaration of interests.” An “interest in real property” includes “estates in, powers of
appointment under [WIS. STAT.] ch. 702 over, present and future rights to, title to, and interests in
real property, including … rights under covenants running with the land.” WIS. STAT. § 840.01(1).
“Persons claiming interests adverse to the plaintiff which interests the plaintiff wants affected by
the judgment shall be named as defendants; other persons with interests in the described property
may be named as defendants.” WIS. STAT. § 841.03. “Actions for a declaration of interests were
formerly known as quiet title actions.” Village of Hobart v. Oneida Tribe of Indians of Wis., 2007
WI App 180, ¶12, 303 Wis. 2d 761, 736 N.W.2d 896.

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No. 2023AP58

legality. Although Townline’s basis for removing the Restriction—i.e., that the
personal representatives had no authority to include the Restriction in a deed for the
Property subject to administration—is tied to the Estate’s administration, Townline
itself is not. In this context, Townline’s most appropriate avenue for seeking relief
would have been an action under WIS. STAT. § 840.01(1), not reopening a
long-closed estate.

¶62 Finally, intervening circumstances also make it inequitable to allow
Townline to reopen the Estate for the specific relief it seeks. First, Bachhuber, who
was a co-personal representative and directly handled the Estate’s administration, is
deceased. He was one of, if not the key person involved with matters related to
Townline’s challenge. Also, and relatedly, because of the passage of time and
normal file-retention policies, some documents from Bachhuber’s administration of
the Estate no longer exist. Given his integral involvement in the Estate’s
administration, Bachhuber’s unavailability and his incomplete file would place the
Estate at a disadvantage in defending a claim challenging its administration.17
Woodrich, whom Bachhuber consulted for the Property’s appraisal value provided
in the Estate’s inventory during the administration, is also deceased.18 Given
Townline’s arguments in this case regarding the failure of the Estate’s personal

17
The Heirs’ counsel informed the circuit court at the July 2022 evidentiary hearing that
he did not have Bachhuber’s entire file regarding the Estate’s administration. We, of course,
recognize that this evidentiary void will impact any quiet title action. It will do so, however, strictly
as an evidentiary matter within the context of that claim, which would seek to declare a restrictive
covenant on real property void. It will not be used to directly assail an estate’s proper
administration and formally reopen that estate.
18
See WIS. STAT. § 865.12 (allowing the personal representative to “employ a qualified
and disinterested appraiser to assist in ascertaining values of any assets where valuation is subject
to reasonable doubt”).

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No. 2023AP58

representatives to maximize the value of the Property upon its sale, his absence is
also material.

¶63 Second, the Estate had no reason to believe that a subsequent
purchaser of the Property would seek to reopen the Estate to remove the Restriction,
given that the Property was sold to Billgee with the Restriction in place. In fact, the
Restriction was part of the negotiations for the sale of the Property. Subsequent
owners of the Property (WM Development and ABS 1) also purchased the Property
with knowledge of the Restriction. None of these prior owners challenged the
administration of the Estate with respect to the Restriction. Even Townline
purchased the Property with knowledge of the Restriction (despite its belief that the
Restriction was invalid), which fact we find compelling to our analysis and
conclusion.

¶64 In short, the deaths of Bachhuber and Woodrich, the loss of
documents regarding Bachhuber’s handling of the Estate, and the Estate’s lack of a
reason to believe that a subsequent purchaser would challenge the Estate’s
administration are circumstances that make it inequitable to allow Townline to now
reopen the Estate for the relief it seeks. Taken together with the factors we have
already considered, these circumstances weigh against disturbing the finality of the
Estate’s administration.

¶65 Before concluding, we acknowledge the factors militating in favor of
allowing the reopening of the Estate. First, the fact that a will existed and was
discovered before the Estate closed, yet neither Bachhuber nor Arnold alerted the
probate registrar or any other party of its discovery, provided a basis for Townline
and the circuit court to consider upsetting any finality resulting from that failure to
disclose. However, as noted above, a motion to reopen a closed proceeding at this

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No. 2023AP58

late date for any fraud is time-barred. Second, as alluded to earlier in this opinion,
it is by no means clear that Townline’s challenge to the Restriction’s invalidity is
without merit, and Wisconsin law plainly desires that personal representatives of
estates comply with state law. Further, Wisconsin public policy “favors the free and
unrestricted use of property.” Forshee v. Neuschwander, 2018 WI 62, ¶16,
381 Wis. 2d 757, 914 N.W.2d 643 (citation omitted). In cases without the facts that
exist here, the public policy favoring finality may very well yield to these factors
and compel allowing an estate to be reopened.

¶66 In sum, public policy calls for eventual finality in estate
administration; the ability to challenge an estate must eventually come to an end.
Under the facts of this particular case, the policies favoring finality in estate
administration and having a sensible and just stopping point for challenging closed
estates outweigh, as a matter of law, allowing Townline to challenge the
administration of the Estate. Allowing such a challenge for the purpose of removing
the Restriction after the Estate has been closed for fifteen years would unreasonably
undermine the finality of the Estate. A stopping point to such challenges is
especially necessary where, as here, the challenging party had no interaction with
the long-closed estate, there is an alternative and more appropriate method for the
legal relief sought without reopening that estate, and intervening circumstances
make it inequitable for the challenging party to reopen that estate and challenge its
administration.

By the Court.—Order reversed.

Recommended for publication in the official reports.

31