01-2189 In Re the Estate of Frank Bucner Thompson et al. v. Jaskolski

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“Following the evidentiary hearing, the circuit court issued a comprehensive decision containing its factual findings and legal conclusions. The decision noted that the evidence had developed, in part, from a ‘skilled, meticulous and extensive’ search for heirs-a search that relied on numerous documents dating back more than one hundred years and exposed ‘the more conservative societal judgments of earlier generations and insights into the personal lives of various persons now deceased.’ Emphasizing ‘the force of the stigma attached to childbirth outside of marriage one hundred years ago,’ the court found many facts undercutting the birth-certificate evidence….

“Accordingly, we affirm the circuit court’s order to the extent it determined that FGT was not the marital child of FJT.

However, we conclude that the trial court erred in concluding that Wis. Stat. sec. 893.88 precluded it from allowing or directing the personal representative to seek the court’s determination of FBT’s paternity. Although that statute requires that a paternity “action” be filed within 19 years of a child’s birth, plaintiffs could seek a determination of paternity in a different proceeding.

Further, the trial court erred in determining that FBT’s personal representative was warranted in refusing to seek genetic testing.

“Clearly, the personal representative’s decision was unreasonable, given that it was based on: (1) her misinterpretation of the preclusive impact of the statute of limitations; (2) her mere hope, expressed in her letter to the court commissioner, that her understanding of FBT’s wishes could be honored, notwithstanding her knowledge of law prohibiting anything other than escheat; and (3) her failure to recognize the legal means available to determine FBT’s paternity and, therefore, the identity of his heirs.”

Affirmed in part, reversed in part and remanded for completion of the probate proceedings.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Lamelas, J., Schudson, J.

Attorneys:

For Appellant: Maureen A. McGinnity, Milwaukee; Jeffrey A. De Matthew, Racine; Gregory M. Monday, Madison

For Respondent: Owen Thomas Armstrong Jr., Milwaukee; Chris K. Gawart, Milwaukee; Amy P. Brock, Milwaukee