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COURT OF APPEALS DECISION DATED AND FILED March 19, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Vergeront, JJ.
¶1 PER CURIAM. Six children of Edward A. Schunk, Jr., appeal from an order construing his will to leave the bulk of his estate to his seventh and youngest child, Megan Schunk. We conclude that the court’s construction of the will is not a reasonable interpretation. An unresolved ambiguity in the will remains, however, as to whether the will disinherits three of the appellants. We therefore reverse and remand for further proceedings to resolve that remaining ambiguity.
¶2 The appellants were adults at the time of Schunk’s death, and Megan was seventeen. The following paragraph appears at the beginning of Schunk’s will:
In making this will, I have considered my wife, Linda Schunk and my children, Virgil Schunk, John Schunk, Donna Lemmer, Trulena Schunk, Jayne Schunk, Aimee Schunk and Megan D. Schunk, who are my natural heirs at law. It is not through oversight that I have failed to provide for my daughters, Trulena Schunk and Aimee Schunk and my son, Virgil Schunk. I have intentionally not included them as beneficiaries herein.
¶3 Article 2 of the will, entitled Specific Bequests, left $10,000 to Charles Wilkinson, a party to this appeal as the personal representative but not as a will contestant, and cash grants of $5000 each to John Schunk, Jayne Schunk and Donna Lemmer. The will left the bulk of the remaining estate to Megan, unless Schunk died before she reached age eighteen.[1] In that event, the bulk of the estate went to the family trust created in Article 4 of the will, and Megan received no specific bequest. Article 4 stated that the primary purpose of the trust was “to provide for the expenses of raising my children.” Section C provided that: “[W]hen my youngest living child reaches the age of eighteen (18), the remaining net trust assets shall be divided into equal shares so that there is one share for each of my then living children and one share for each of my then deceased children who is survived by living issue.”
¶4 Wilkinson petitioned the court to construe the will to disregard the provisions of the family trust, which Wilkinson alleged did not reflect Schunk’s intent, and distribute the estate as if Megan were eighteen at the time of Schunk’s death. The court agreed that the will was ambiguous, and heard testimony as to Schunk’s intent at the time he wrote it. The witnesses were the attorney who drafted the will for him, and a paralegal who worked in her office.[2] The attorney unequivocally testified that Schunk included the family trust provision at her suggestion, and that he intended to make Megan the sole beneficiary of the trust. She also testified that the reference to “children” in the family trust portion of the will was standard form, or “boiler plate,” language that she, at one point, recognized as an error. However, for unexplained reasons, the erroneous reference to “children” was never corrected to reflect Schunk’s actual intent.
¶5 Based on that testimony, the court found that Schunk intended “children” in the family trust portion to mean Megan, and construed the will accordingly to make her the only beneficiary of the trust provision. That ruling is the subject of this appeal.
¶6 The
construction of a will is a question of law we review without deference to the
trial court. See Furmanski v. Furmanski, 196
¶7 It was
error to construe “children” to mean Megan, because nothing in the text of the
will allows a reasonable inference that the term is used ambiguously in the
sense that it could mean only one, specific child. Consequently, there was no basis to rely on
extrinsic evidence that Schunk intended to make Megan the sole trust
beneficiary. That he did not so intend
is plainly answered within the four corners of the will. “A court in construing a will cannot reform
the same and change the meaning of the express language used in order to
correct a scrivener’s mistake.” Grove
v. National Mfrs. Bank of
¶8 There is, however, an ambiguity as to whether “children” refers to all of Schunk’s children, or whether it excludes the three children expressly disinherited in the prologue to the will. Either construction is reasonable. We therefore remand for further proceedings to resolve this ambiguity, with resort to surrounding circumstances and extrinsic evidence, if necessary. The court may permit the parties to introduce additional evidence, in its discretion.
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2007-08).