Trusts and Estates — drafting errors

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Wisconsin Court of Appeals

Civil

Trusts and Estates — drafting errors

A will was properly admitted to probate despite an attorney’s drafting error that failed to reference a marital property agreement with the deceased’s ex-wife.

“Here, if we were to accept Ramona’s argument, the 2010 Will’s distribution of the very same property to which the power of appointment relates is meaningless. If a failure to reference the power of appointment would render an instrument of execution meaningless and inoperable, it becomes reasonably plain that the testator intended the instrument to exercise the power of appointment. At the very least, it creates an ambiguity—what is the purpose of Donald’s stated disposition if the 2010 Will has no effect whatsoever? Thus, the 2010 Will itself is inherently ambiguous, because it attempts to effect a distribution that, Ramona argues, is nugatory. The surrounding circumstances further confirm the ambiguity—the 2010 Will replaced the prior 2007 Will, which specifically referenced the power of appointment, stating: ‘This instrument is drafted pursuant to the power of appointment in Article XIII, Paragraph C. of a Marital Property Agreement dated April 24, 2002.’ If, after examining the surrounding circumstances at the time of a will’s execution, the ambiguity or inconsistency persists, it is appropriate to resort to extrinsic evidence and the rules of will construction. See Lohr, 174 Wis. 2d at 484. In doing so, the drafting attorney’s testimony concerning the statements the testator made is admissible as extrinsic evidence of the testator’s intent. Id. at 485 (citing Mangel v. Strong, 51 Wis. 2d 55, 69, 186 N.W.2d 276 (1971)).”

Affirmed.

Recommended for publication in the official reports.

2011AP2521 Czaplewski v. Shepherd

Dist. II, Waukesha County, Domina, J., Neubauer, J.

Attorneys: For Appellant: Fay, Daniel P., Pewaukee; Georgeson, Thomas D., Oconomowoc; Fay, Erin, Pewaukee; For Respondent: Demet, Donal M., Milwaukee