2005AP706 Shovers v. Shovers (64480)

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“Against this backdrop it is easy to see why Sylvia’s attempt to gain ownership of shares of stock that she alleges were part of her late husband’s estate is problematic. She is trying to claim ownership, under the residuary clause of her late husband’s yet-to-be probated will, to assets not even expressly mentioned in that will, prior to the appointment of a personal representative. She has no authority to bring such a case.

“As the trial court correctly concluded, the estate has the responsibility to determine whether the stock is part of the residual estate, and only thereafter would Sylvia have the opportunity to proceed. The trial court also rightly noted that while the estate could have been made part of this case through a special administration, this was not done and the estate has yet to be processed; therefore, it was not up to the trial court to recreate what was not done. It is likewise not up to this court to speculate what could or should have been done.

“Moreover, we agree with Gary that Sylvia’s attempt to assert ownership by seeking a declaratory judgment is inappropriate because she is advocating on her own without joining other potential beneficiaries as required by the Declaratory Judgment Act. In light of all of the abovementioned deficits, we see no reason to reward Sylvia for what appears to be an attempt to circumvent the probate court.”

Affirmed.

Recommended for publication in the official reports.

Dist. I, Milwaukee County, Moroney, J., Curley, J.

Attorneys:

For Appellant: Ahrens, Gary A., Milwaukee; Champagne, Jacquelyn A., Milwaukee

For Respondent: Apfeld, Michael B., Milwaukee; Pollack, Howard A., Milwaukee; Duffin, William E, Milwaukee