Bender v. Lindhal

Decision Date26 June 1996
Docket NumberNo. 94-3316,94-3316
Citation203 Wis.2d 269,551 N.W.2d 869
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. 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.
CourtWisconsin Court of Appeals

APPEAL from a judgment of the circuit court for Walworth County: RICHARD G. HARVEY, JR., Reserve Judge. Reversed and cause remanded.



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...

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