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COURT OF APPEALS DECISION DATED AND RELEASED June 29, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3230-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
IN THE MATTER OF THE
ESTATE OF
LEROY A. KAI,
DECEASED:
PAUL KAI,
Appellant,
v.
MARGIE KAI,
Respondent.
APPEAL from an order of
the circuit court for Rock County:
JAMES DALEY, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER CURIAM. Paul Kai, son of Leroy A. Kai, deceased,
appeals from an order refusing to admit LeRoy's will to informal probate upon a
finding that the will was not executed in accordance with law. For the reasons set forth below, we affirm.[1]
The parties do not
dispute that when witness Phillip M. Lancaster signed the will, witness Valorie
Lancaster was in another room and could hear, but not see, Phillip
signing. On these facts, the trial
court found that the will could not be admitted to informal probate because it
was not signed by the witnesses in the presence of each other. Section 853.03, Stats., provides in part:
Every
will in order to be validly executed must be in writing and executed with the
following formalities:
....
(2) It must be signed by 2 or more
witnesses in the presence of the testator and in the presence of each other.
(Emphasis
added.)
Paul argues that because
Valorie was in an adjoining room and could hear the circumstances surrounding
LeRoy's request that Phillip sign, Valorie was constructively present. In Estate of Haugk, 91 Wis.2d
196, 207-09, 280 N.W.2d 684, 689-90 (1979), our supreme court rejected the
concept of constructive presence.
Citing Estate of Wilm, 182 Wis. 242, 244, 196 N.W. 255,
255 (1923), the court held that the "presence" requirement of
§ 853.03, Stats., must be
"strictly constru[ed]" to require a will to be witnessed by two
witnesses in the presence of one another and in the presence of the
testator. In Estate of Hulett,
6 Wis.2d 20, 26, 94 N.W.2d 127, 130 (1959), the court stated:
A
person in whose presence an act is done must be informed of what is taking
place so that he actually knows what is being done; or the act is not done in
his presence, no matter how close to him it may be done. A will is not signed in the presence of
one who is attending to another matter and does not know what is taking place
until he is told later.
(Citing
1 Page, Wills § 354 (lifetime ed.)) (emphasis added).
Valorie may have been
informed later that Phillip signed the will; however, she did not see the
signing take place, nor was she told until afterwards that Phillip and Leroy
had signed. Such an execution of the
will does not satisfy the "presence" requirement of § 853.03, Stats.
By the Court.—Order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.