Haugk's Estate, In re

Decision Date29 June 1979
Docket NumberNo. 76-739,76-739
Citation91 Wis.2d 196,280 N.W.2d 684
PartiesIn re ESTATE OF Marie HAUGK, Deceased. LUTHERAN CHILDREN'S FRIEND SOCIETY and Easter Seal Society of Milwaukee County, Inc., Appellants, v. Horst O. HAUGK, personal representative of the Estate of Marie Haugk, Deceased, Respondent.
CourtWisconsin Supreme Court

Dennis J. Mank and Schroeder, Gedlen, Riester & Moerke, and Frank W. Bastian and Lichtsinn, Dede & Haensel, Milwaukee, on brief, for appellants.

James P. Brennan, Bernard T. McCartan and Brennan & Collins, and Terese A. Tillman, Milwaukee, of counsel and on brief, for respondent.

COFFEY, Justice.

The appellants, Lutheran Children's Friend Society and the Easter Seal Society of Milwaukee County, appeal from an order denying a petition for probate of the allegedly revoked will of Marie Haugk and further ordering the intestate administration of the decedent's estate. The subject will was duly executed on January 6, 1965 naming the appellants, Lutheran Children's Friend Society and Easter Seal Society of Milwaukee County, Inc., as residual beneficiaries. It is undisputed that the decedent's husband, Horst Haugk, burned the will of 1965 on or about September 2, 1976.

The decedent (hereinafter Marie), and Haugk were married in 1959, her second marriage and his third. At the time of their marriage, Marie was sixty-two years of age and childless, and Haugk was fifty-five years of age, and the record contains no indication that he fathered any children in his previous marriages.

The 1965 will provided that Haugk would receive a nominal disposition from his wife's estate, consisting of her household goods and furnishings, as well as her clothing, jewelry and other personal property. Marie's will also provided that Haugk occupy their apartment located in her building, rent free for a period of one year after her death. It was expressly stated in the will that the bequests to her husband did not include any money, securities, evidences of debt, titles or accounts owned by Marie at the time of her death.

The will also provided:

"FOURTH: All the rest, residue and remainder of my estate, of whatsoever kind and wheresoever situated, I direct shall be divided into fifteen (15) equal parts, and I give as follows:

                "(a) To JOHN FUCHS, . . .               brother
                     . . .                                          1 part
                "(b) To RAY SPORS, . . . nephew,        . . . .     3 parts
                "(c) To PAUL SPORS, . . .               nephew
                     . . .                                          4 parts
                "(d) To JOHN FUCHS, JR., . . .          nephew
                     . . .                                          2 parts
                "(e) To DAVID KJELL, . . .friend,                   2 parts
                "(f) To SALVATION ARMY, . . .                       1 part
                "(g) To LUTHERAN CHILDREN'S
                      FRIEND SOCIETY, . . .                         1 part
                "(h) To EASTER SEAL SOCIETY OF
                      MILWAUKEE COUNTY, INC., . . .                 1 part

"FIFTH: In the event HORST HAUGK or DAVID KJELL shall predecease me, his legacy shall lapse and become a part of the residue of my estate.

"In the event JOHN FUCHS, RAY SPORS, PAUL SPORS, or JOHN FUCHS, JR. shall predecease me, leaving issue of his own surviving me, then such issue shall take, and if more than one, equally between them as tenants in common, the share which the parent would have taken had he been then living, but if any of said legatees dies before my decease without issue surviving him, the intended bequest shall lapse and become a part of my residuary estate."

The 1965 will was drafted by Atty. Albert Franz who retained a copy of the testamentary document. The original of this will was deposited for safekeeping in the offices of the Milwaukee County Register in Probate on January 7, 1965.

In March, 1976, Marie and Haugk consulted another attorney, Terese Tillman, regarding the drafting of new individual wills. Thereafter, Attorney Tillman met with the Haugks on August 11 and 26 and discussed their intentions in establishing new wills. At the August 26 conference, Marie and Haugk authorized Atty. Tillman to prepare new wills and post-nuptial agreements disclaiming each party's interest in the other's estate.

The next day, after the conference with the new attorney, Haugk attempted to withdraw the 1965 will from the office of the register in probate, but the request was denied as he had not complied with the requirement that he obtain Marie's signature on a power of attorney form provided by the probate office for the withdrawal of a will. A few days later on the 31st of August, 1976, Haugk returned to the probate office and secured the will after producing his wife's signature on the witnessed and notarized probate office power of attorney form.

At the will contest hearing, Haugk testified that at his wife's request he burned the will in the basement incinerator of Marie's apartment building. He also explained that, at the time of the burning of the will in the first week of September, 1976, his wife was not present in the basement as she was suffering from a severe heart condition and thus was unable to climb the thirteen stairs separating the kitchen from the apartment's basement.

A week to ten days after the burning of the will on September 10 and 17, Marie conferred by telephone with Atty. Tillman requesting the delivery and execution of the new will and postnuptial agreements. In the conversation on the 17th, the attorney told Marie the new will was prepared and scheduled an appointment for its execution on September 20, 1976. The new will, similar in many respects to the provisions contained in the 1965 will, provided for a nominal bequest to Haugk. He was to receive Marie's personal effects and the rent-free use of the apartment for eight months rather than one year. Another change in the new will provided the estate residue was to be divided equally among her nephews, Ray and Paul Spors and John Fuchs, Jr. Further, in contrast to the earlier (1965) will, the new will withdrew any bequest to the appellant charities, the Easter Seal Society of Milwaukee County, Inc., and Lutheran Children's Friend Society. Haugk explained at the will contest hearing the reason for the withdrawal of the bequest to the appellant charities was because his wife, Marie, had become disenchanted with the charities because of their frequent advertising and solicitation for contributions.

The new will was never executed as Marie died of a heart attack sometime during the day of September 17, 1976, after the phone conversation with Atty. Tillman. Some six days thereafter, on September 23, 1976, Haugk petitioned the court for the probate of his wife's estate. The petition reflects that his wife died intestate leaving property valued at approximately $130,000. Haugk was listed as the estate's sole beneficiary and at his request the court appointed him personal representative.

The Easter Seal Society petitioned the court on January 26, 1977, for admission to probate of a conformed copy of the destroyed will. The charity received this copy of the 1965 will from the drafter of the earlier will, Atty. Albert Franz. Haugk has objected to the charities' petition for probate of the destroyed will.

The Easter Seal Society, in petitioning the court for admission of the 1965 will, stated that: (1) the revocation was ineffective for failure to comply with sec. 853.11(1)(b), Stats., requiring a third party's destruction of a will be at the testator's request and in his or her presence; and (2) that even if the revocation was in accordance with the statute, it was ineffective under the dependent relative revocation theory, sec. 853.11(5), Stats., as Marie did not intend the revocation to be effective until the new will had been executed.

After the hearing on the admission to probate of the destroyed (1965) will, the trial court made the following findings: (1) that the removal of the will from safekeeping was proper, (2) that the destruction of the will complied with sec. 853.11(1)(b), Stats., as it was performed at Marie's instruction and in her "constructive presence"; (3) that the destruction of the new will was not dependent upon an effective execution of the 1976 will.

Issues :

1. Was the withdrawal of the will from the probate office invalid pursuant to sec. 853.09(3), Stats., thus making the destruction of the decedent's will ineffective?

2. Did the destruction of the decedent's will comply with sec. 853.11(1)(b), Stats., requiring a third party's destruction of a will to be at the testator's direction and in her presence?

3. Was it the decedent's intention that the destruction of her will be effective only upon the valid execution of a new will?

I. Was the Testator's Will Properly Withdrawn from Safekeeping?

The appellants contend that the revocation of the 1965 will should be declared invalid as the power of attorney form used by Haugk for withdrawal of his wife's will from the custody of the register in probate was improper as it did not comply with the requirements of sec. 853.09(3), Stats. The statute provides:

"853.09. Deposit of will in county court during testator's lifetime.

". . ..

"(3) WITHDRAWAL. A testator may withdraw his will during his lifetime, but The register in probate shall deliver the will only to the testator personally or To a person duly authorized to withdraw it for the testator, by a writing signed by the testator and 2 witnesses other than the person authorized." (emphasis supplied.)

The appellants maintain that contrary to the two witness requirements in sec. 853.09(3), Stats., the power of attorney form produced by Haugk in securing his wife's will from the probate office was witnessed by only one person. Haugk contends he had the right to rely that the register in probate's delivery of the 1965 will was done in compliance with sec. 853.09(3). Alternatively, he argues that the invalidity of the power of attorney form used in withdrawing...

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    ....") (quoting Walker v. Walker, 174 N.E. 541, 543 (111. 1930)). (226) See Lutheran Child.'s Friend Soc'y v. Haugk (In re Estate of Haugk), 280 N.W.2d 684,690-91 (Wis. 1979). (227) Id. at 685-86. (228) Id. at 686. (229) Id. (230) Id. at 690. (231) Id. (232) Id. at 687; see also, e.g., Stainba......

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