Estate of Warunek, Matter of

Decision Date07 November 1990
Docket NumberNo. 89-2016,89-2016
Citation159 Wis.2d 129,463 N.W.2d 866
PartiesIn the Matter of the ESTATE OF Joseph WARUNEK, Deceased. Marvin BIESIADECKI, Appellant, v. Wladystawa STALA and The Estate of Joseph Warunek, Respondents.
CourtWisconsin Court of Appeals

Neil F. Guttormsen of Heide, Hartley, Thom, Wilk & Guttormsen, Kenosha, for appellant.

Thomas P. Aiello of Madrigrano, Gagliardi, Zievers & Aiello, S.C., Kenosha, for respondents.


SCOTT, Judge.

The will of Joseph Warunek was denied admission to probate because it was found to be an invalid joint will. The personal representative, Marvin Biesiadecki, appeals. We conclude that the will is ambiguous as to whether a joint will was intended and that the evidence demonstrates that a separate will was intended. We reverse the order and remand the cause for admission of the will to probate and further appropriate probate proceedings.

Joseph Warunek died on May 21, 1989. The will sought to be admitted to probate was dated March 10, 1982 and was signed by Joseph and his wife, Mary Warunek, who died December 25, 1988. The will was notarized by Heddy Moskaluk. Moskaluk testified that the Waruneks came to her with a handwritten will drafted in Polish, the Waruneks' native language. They requested Moskaluk to translate and transcribe the document into English. As translated the will provided:


In the event of death of both of us--and the lots have not been purchased up to that time--it is our wish that the lots be purchased and the monuments be erected at the price of $2,000.--each.

The funeral to be according to the Catholic rites. 30 Gregorian Masses to be said for each in the St. Casimir Church in Kenosha, Wisconsin, where the funeral should be held.

The will then listed four beneficiaries. It concluded:

Marvin Biesiadecki residing at 319 W. Madison Ave. Wheaton, IL 60187, is to be the executor of my estate as instructed in the above will.

After deducting the expense of funeral, monuments and the masses, and paying the beneficiaries the remains of the estate goes to the executor Marvin Biesiadecki.

Estate of Cordes, 1 Wis.2d 1, 7-8, 82 N.W.2d 920, 925 (1957), states:

A joint will which expressly or impliedly does not become effective until the death of the survivor is invalid....

A joint will that is not capable of being separated as the separate will of each maker should not be probated.... The test seems to be that if the will may be probated separately for each without regard to the fact that the other is living, then the double will is valid.

The trial court held that the Warunek will could not be interpreted as the separate will of Joseph and Mary and refused to admit it to probate. When determining whether a will may be probated separately, the court is bound to consider the meaning and legal effect of the language of the instrument in the light of the circumstances existing at the time of its execution. Id. at 8-9, 82 N.W.2d at 925. No factual dispute exists here and the primary concern is the legal effect of the will. The determination as to whether the Warunek will was an invalid joint will presents a question of law which we decide de novo. See Estate of Erbach, 41 Wis.2d 335, 340, 164 N.W.2d 238, 241 (1969).

Looking first to the language of the will, we note that the opening clause refers to the "death of both of us." Yet the phrase is ambiguous as to whether it applies only when the survivor of Joseph and Mary dies or in the event of simultaneous death. Further, the reference to the "death of both of us" is ambiguous as to whether it governs all the provisions in the will such that it was intended that the will operate only on the death of the survivor of Joseph and Mary. The will refers in the singular with respect to the provisions for the payment of the funeral, the named executor and disposition of the remainder of the estate. There are no provisions in the will which can be carried out only after the death of the surviving spouse.

Given the ambiguity in the opening clause and the mandate to consider the language of the instrument in light of the circumstances surrounding execution, we turn to Moskaluk's testimony. We reject the respondents' contention that Moskaluk's testimony cannot be considered by this court because...

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2 cases
  • Bender v. Lindhal
    • United States
    • Wisconsin Court of Appeals
    • June 26, 1996
    ...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 exec......
  • Caflisch v. Staum, 99-2635-FT.
    • United States
    • Wisconsin Court of Appeals
    • April 25, 2000 interpreting Wisconsin's statutory will. The cases she does cite support our interpretation. See, e.g., Biesiadecki v. Stala, 159 Wis. 2d 129, 134, 463 N.W.2d 866 (Ct. App. 1990) (Courts will sustain a will as legally executed but only if it is possible to do so consistent with the requ......

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