Kai v. Kai
| Decision Date | 29 June 1995 |
| Docket Number | No. 94-3230-FT,94-3230-FT |
| Citation | 195 Wis.2d 681,538 N.W.2d 860 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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 Leroy A. KAI, Deceased: Paul Kai, Appellant, v. Margie KAI, Respondent. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
Paul Kai, son of Leroy A. Kai, deceased, appeals from an order refusing to admit LeRoy's will to informal probate upon a finding that the will was not executed in accordance with law. For the reasons set forth below, we affirm. 1
The parties do not dispute that when witness Phillip M. Lancaster signed the will, witness Valorie Lancaster was in another room and could hear, but not see, Phillip signing. On these facts, the trial court found that the will could not be admitted to informal probate because it was not signed by the witnesses in the presence of each other. Section 853.03, STATS., provides in part:
Every will in order to be validly executed must be in writing and executed with the following formalities:
....
(2) It must be signed by 2 or more witnesses in the presence of the testator and in the presence of each other.
(Emphasis added.)
Paul argues that because Valorie was in an adjoining room and could hear the circumstances surrounding LeRoy's request that Phillip sign, Valorie was constructively present. In Estate of Haugk, 91 Wis.2d 196, 207-09, 280 N.W.2d 684, 689-90 (1979), our supreme court rejected the concept of constructive presence. Citing Estate of Wilm, 182 Wis. 242, 244, 196 N.W. 255, 255 (1923), the court held that the "presence" requirement of § 853.03, STATS., must be "strictly constru[ed]" to require a will to be witnessed by two witnesses in the presence of one another and in the presence of the testator. In Estate of Hulett, 6 Wis.2d 20, 26, 94 N.W.2d 127, 130 (1959), the court stated:
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.
(Citing 1 PAGE, WILLS § 354 (lifetime ed.)) (emphasis added).
Valorie may have been informed later that Phillip signed the will; however, she...
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