Anti-Lapse Statute-Probate

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WI Court of Appeals – District III

Case Name: LeRoy F. Alvis, Jr. v. Rian Alvis

Case No.: 2023AP000366

Officials: Stark, P.J., Hruz and Gill, JJ.

Focus: Anti-Lapse Statute-Probate

Alma and LeRoy were husband and wife and had five children. On October 15, 1991, Alma and LeRoy signed a handwritten document entitled “Last Will and testimony of LeRoy F. Alvis Sr. and Alma E. Alvis” (hereinafter, “the joint will”). The joint will stated that on the death of either spouse, his or her entire estate would pass to the surviving spouse. The joint will further provided that if the spouses “die[d] together,” their home should be sold at fair market value and “divided to all 5 children”; their cars, tractor, and “big tool[s]” should be “sold at fair market value [and] divided”; their insurance, bonds, IRAs, and CDs should be “divided”; and, with respect to their “household items” and “other items,” “the 5 kids can take what each wants, if it can be settled with our Executor[’]s approval, [other]wise sold [and] then divided.”

Danny Alvis, one of Alma and LeRoy’s five children, died in April 2011. Alma and LeRoy took no action to change or update the joint will following Danny’s death. LeRoy subsequently died in September 2011, and Alma died in June 2013. Probate proceedings, however, were not commenced until March 16, 2022. On that date, Robbie filed an application for informal administration of Alma’s estate. The application listed Rian, Danny’s daughter, as an “additional interested person[]” but asserted that she was “not a beneficiary” under the joint will. The four surviving Alvis children signed “Waiver and Consent” forms consenting to the admission of the joint will to probate This appeal involves the circuit court’s interpretation of the joint will of LeRoy F. Alvis, Sr., and Alma E. Alvis and the court’s interpretation of the anti-lapse statute, WIS. STAT. § 854.06 (2021-22). The court determined that under the joint will, and by operation of the anti-lapse statute, Rian Alvis is entitled to her deceased father’s share of Alma’s estate. LeRoy F. Alvis, Jr., (“Robbie”) appeals from the court’s order, arguing that the anti-lapse statute does not apply because: (1) the joint will creates a class of beneficiaries that is limited to Alma and LeRoy’s children, and the members of that class are contingent beneficiaries under the joint will; and (2) the joint will is not a revocable governing instrument. The court rejects these arguments and affirm.

Affirmed.

Decided 01/09/24

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