William Wisth v. James P. Mulligan

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.
April 28, 2020
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP607 Cir. Ct. No. 2018PR962

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE ESTATE OF ARTHUR HENRY WISTH:

WILLIAM WISTH,

APPELLANT,

V.

JEAN GORSKI,

RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Reversed and cause remanded with
directions.

Before Brash, P.J., Dugan and Donald, JJ.
No. 2019AP607

¶1 DONALD, J. William Wisth (Wisth) appeals an order of the
probate court denying his petition for administration of the estate of his father,
Arthur Wisth (Arthur). Wisth argues that the probate court erred in refusing to
appoint a personal representative because Wisth has a contract claim against
Arthur’s estate. Specifically, Wisth contends that he and Arthur executed an
agreement that transferred certain real property to Wisth upon Arthur’s death.
Because we conclude that the probate court should have appointed a personal
representative to address Wisth’s claims, we reverse and remand this matter back
to the probate court.

BACKGROUND

¶2 On March 5, 1999, Arthur and Eleanor Wisth executed the Arthur H.
Wisth and Eleanor P. Wisth 1999 Revocable Trust. The trust provided that upon
the surviving spouse’s death, Arthur and Eleanor’s assets were to be distributed
primarily among their three children—Jean Gorski, William Wisth, and
James Wisth. The trust provided that the assets were to be evenly distributed
between the children, except that Wisth’s share would be $200,000 “less in value
than the shares of his siblings.”

¶3 Approximately two months later, on May 19, 1999, Wisth and
Arthur allegedly1 entered into a written agreement whereby Wisth, by his
corporation B.W. Properties, Inc., conveyed multiple items of real estate to
Arthur’s limited liability company, AHW Properties, LLC, because Wisth was
experiencing personal financial difficulties and was unable to pay the mortgages

1
The Respondent raises concerns about the validity of the agreement. Whether the
agreement is valid is irrelevant to the question on appeal.

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on the properties. According to the agreement, Arthur would bring the properties
current on their mortgages and return the properties to Wisth upon his death.

¶4 In April 2008, Arthur and Eleanor jointly executed an amendment to
the 1999 Revocable Trust. The amendment expressly cut Wisth out of the estate
plan and divided Arthur and Eleanor’s estate between two children—Jean Gorski
and James Wisth. The amendment specifically stated that Arthur and Eleanor
“make no provision for our son, William A. Wisth, or for any of his issue.” No
other amendments were made to the trust.

¶5 Eleanor passed away on May 2, 2017. Arthur passed away on
April 29, 2018. Prior to Arthur’s death, James Wisth also passed away, leaving
Gorski as the sole beneficiary pursuant to the trust amendment.

¶6 On June 7, 2018, James Mulligan filed the action underlying this
appeal. Mulligan petitioned for the appointment of a special administrator for the
sole purpose of accepting service on behalf of the estate in a foreclosure action in
which the estate was a named party.2 A few weeks later, Wisth filed a letter with
the circuit court requesting to be added to the action as an interested party based
on the agreement between Wisth and Arthur. The letter stated that four specific
properties in the estate were affected by the agreement. Wisth also filed the
agreement between himself and Arthur with his letter to the circuit court.

¶7 On September 7, 2018, Wisth petitioned the probate court for a
formal administration. The petition requested that the probate court appoint a

2
The foreclosure action was commenced in Milwaukee County against Mary Jones.
Arthur was determined to be a necessary party to the foreclosure action because he held a prior
small claims judgment against Jones.

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personal representative and that the personal representative be directed to deed the
four properties at issue from Arthur’s estate to Wisth. The probate court issued an
order setting a date and time for a hearing on the petition. The order was
subsequently published. Consequently, Gorski became aware of Wisth’s action
and objected to his petition. Gorski’s objection was based on the terms of the
2008 trust amendment, which specifically removed Wisth as a beneficiary of any
portion of Arthur and Eleanor’s estate.

¶8 At the hearing on Wisth’s petition, the probate court asked Wisth
whether his petition constituted a challenge to Arthur’s will. Wisth, through
counsel, told the probate court that he was not challenging the will, but rather was
raising a contract claim based on the agreement between Wisth and Arthur. The
probate court denied Wisth’s petition, stating that the 2008 trust amendment
reflected Arthur and Eleanor’s final wishes, which included their intention to
disinherit Wisth. The probate court stated:

Assume that there was an agreement, I believe that
the codicil in the trust changed [Arthur’s] intent and his
wife’s intent as to what they wanted to do for their son.

If [Arthur and Eleanor] had wanted to give money
to their son for the benefit of the properties they received,
they could have done that but they chose not to do that and
it was well after the alleged agreement. It’s the last voice.
The last thing they said. And I wish it weren’t so because I
don’t like to see these family disputes but it’s clear the
clear intent of [Arthur and Eleanor] was that their son not
take and that I believe is the answer to the question.

….

[The amendment] changed as of what they wanted.
The property went to his father. Once the property went to
his father, it became marital property. It required really
both signatures of the mother and father to transfer—any
agreement—and that’s another issue but that didn’t happen
except after the agreement they both said, you know what,
we don’t want our son to get anything.

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I don’t know why and I don’t need to know the
reason why. If there was an agreement, I accept that fact,
there was an agreement and the agreement was broken or
nullified by what they did in their trust. That was their last
voice and that’s what I’m going to abide by so I’m granting
the petition—I’m denying the petition for formal
administration.

This appeal follows.

DISCUSSION

¶9 The construction of a testamentary document presents a question of
law. See Holy Family Convent v. DOR, 157 Wis. 2d 192, 195, 458 N.W.2d 579
(Ct. App. 1990). We review questions of law independently without deference to
the decision of the circuit court. See Scheunemann v. City of West Bend, 179
Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). This case also requires us to
make a determination pursuant to WIS. STAT. § 856.07 (2017-18),3 which also
presents a question of law that we review de novo. See Bell v. Neugart, 2002 WI
App 180, ¶15, 256 Wis. 2d 969, 650 N.W.2d 52.

¶10 At issue in this appeal is whether the probate court erred in denying
Wisth’s petition for special administration pursuant to WIS. STAT. § 856.07. Wisth
contends that because he had a cause of action against the estate sounding in
contract, the appointment of a personal representative was necessary to address his
claim. We agree.4

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
4
We emphasize that we do not address the validity of the alleged agreement between
Wisth and Arthur, nor do we address the validity of Wisth’s claim against Arthur’s estate. We
decide this appeal on the very narrow issue before us, which is whether the probate court should
have appointed a personal representative in the matter.

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¶11 WISCONSIN STAT. § 856.07 states:

(1) GENERALLY. Petition for administration of the estate of
a decedent may be made by any person named in the will to
act as personal representative or by any person interested.

(2) AFTER 30 DAYS. If none of those named in sub. (1) has
petitioned within 30 days after the death of the decedent,
petition for administration may be made by any person who
was guardian of the decedent at the time of the decedent’s
death, any creditor of the decedent, anyone who has a
cause of action or who has a right of appeal which cannot
be maintained without the appointment of a personal
representative or anyone who has an interest in property
which is or may be a part of the estate.

(Emphasis added.) As relevant to this case, the statute provides that any party
having a cause of action against an estate, or an interest in property that may be a
part of an estate, may petition the probate court for the appointment of a personal
representative to address the party’s concerns. Applying the statute to the facts of
this case, we conclude that Wisth’s petition clearly establishes the need for a
personal representative.

¶12 Case law supports our conclusion. The Wisconsin Supreme Court’s
decision in Darwin v. West, 246 Wis. 199, 16 N.W.2d 806 (1944), is instructive
with regard to what procedure a probate court must follow when determining
whether a contract external to a will affects an estate. In West, Mary West resided
with her daughter, Fannie G. Darwin, from 1929 until 1933. Id. at 200. In 1930,
while West still resided with her daughter, she purchased a home in Minnesota and
placed the title to the home in Darwin’s name. Id. West paid for numerous
improvements to the property, many of which were made by West’s husband. Id.
In September 1931, West made a will, naming Darwin as the executor and giving
Darwin one-sixth of the residuary estate, which was an equal share with her
siblings. Id. Two years later, in September 1933, West asked Darwin to deed the

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Minnesota property to West and assured Darwin that changes had not been, and
would not be, made to West’s will. Id. at 200-01. Darwin deeded the property
back to West. Id. at 201.

¶13 In November 1942, however, West made a new will, which made no
provisions for Darwin. Id. West passed away the following year, at which point
Darwin discovered that her mother created a new will. Id. Darwin filed a claim
against the estate alleging a breach of the agreement made in September 1933, in
which Darwin agreed to deed the Minnesota home to West after West assured
Darwin that no changes had been, or would be, made to West’s will. Id. Darwin
sought damages in the amount of one-sixth the value of West’s estate, or
alternatively, the reasonable value of the Minnesota home on the date Darwin
deeded it to West. Id. Darwin also sought compensation for services rendered
while Darwin and West lived together. Id.

¶14 The circuit court held a hearing to determine whether the evidence
established an oral contract between West and Darwin to devise or bequeath
property for a valid consideration. Id. at 203. The circuit court ultimately found
that evidence did not support a finding of an oral contract between Darwin and
West and our supreme court upheld that determination. Id.

¶15 Although the circuit court in West did not find the existence of an
oral contract, the case is nonetheless instructive in this matter because it describes
the procedural process the circuit court followed to inquire about whether Darwin
had a legitimate claim against her mother’s estate. The probate court in this matter
did not make such an inquiry. Rather, the probate court denied Wisth’s petition
for a personal representative to address the contract claim, interpreting Wisth’s
petition as a challenge to the will rather than as a claim against the estate. The

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probate court based its decision on what it perceived to be Arthur’s final intent.
The record establishes, however, that Wisth did not dispute Arthur’s intention to
disinherit Wisth as reflected in the 2008 trust amendment. Rather, Wisth claimed
to have a cause of action against the estate based on the contradiction between the
terms of the contract he allegedly executed with Arthur and the 2008 trust
amendment. Rather than inquire about Wisth’s claim, as the court did in West, the
probate court concluded that regardless of whether a valid contract between Wisth
and Arthur existed, Arthur’s intentions as expressed in the 2008 trust amendment
took priority over any alleged contract. We conclude that under the language of
WIS. STAT. § 856.07(2), however, Wisth was entitled to the appointment of a
personal representative so that Wisth’s breach of contract claim can be
appropriately addressed.

¶16 The Respondent raises numerous arguments that focus primarily on
the merits of Wisth’s contract claim rather than the issue on appeal, which is
whether the probate court should have appointed a personal representative to
address Wisth’s cause of action.

¶17 For the foregoing reasons, we reverse and remand this matter for
further proceedings consistent with this decision.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

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