Estate of Alburn - Case brief PDF

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Name: Estate of Alburn Court: SC of Wisconsin Date: 1963 Citation: 18 Wis. 2d 340 Procedural History: Facts: Alburn died 11/13/60. Her sister Ruedisili filed a petition for appt. of an administrator saying Alburn died intestate. Then Henkey, a grandniece filed a petition for the probate of a 1955 will executed in Milwaukee in which Henkey was named a legatee and executrix. Lula and Doris Alburn filed a petition for the probate of a 1959 will executed in Kankakee IL. Lulu and Doris are not next of kin, but Lulu is a sister-inlaw of the deceased. Objections were filed to the Milwaukee and Kankakee wills. Procedural history: Lower court held that the Kankakee will had been destroyed by deceased under the mistaken belief that by so doing she would revive the Milwaukee will which had been revoked in the Kankakee will. The court applied the doctrine of dependent relative revocation and held that the Kankakee will was entitled to probate. Ruedisili appealed. Issue: did she destroy the Kankakee will expecting that the Milwaukee will would then govern disposition? Holding: Affirmed. Yes. Apply the doctrine of dependent relative revocation. She wouldn’t have destroyed the Kankakee will unless she thought the Milwaukee will would stand. Since that will did not stand the Kankakee will is valid. Reasoning: In this situation, the testator revoked a later will under the mistaken belief that she was reinstating a prior will. The doctrine is invoked to render the revocation ineffective. Did the trial court err by determining that the deceased revoked the Kankakee will under the mistaken belief that she was thereby reinstating the Milwaukee will? She lived with Henkey and executed the Milwaukee will then. Then she moved to Kankakee and lived with her brother Lehmann and executed her Kankakee will. Then she left Kankakee and whent to Fort Atkinson where she lived with her other borther. That brother testified that he learned of the Kankakee will and asked her what she did with it. She said she destroyed it and the next day it was torn up and disposed of. She told the brothers wife that she wanted the Milwaukee will to stand. Ruedisili claims that the statement was not contemporaneous and so it can’t be evidence of her intent..

The Milwaukee will left stuff to Henkey. The Kankakee will left more to Lulu and Doris. The alburns are relatives of her deceased husband. Viola is a blood relative, but not next of kin. There is no reason why we should consider her intestate leaving her estate to next of kin who are not named in either will. There is evidence that she believed that by destroying the latter will, the ealier one would be operative. She did not wish to die intestate and destroyed the Kankakee will under the mistaken belief that the Milwaukee will would control. Dissent: Concurrence: Definitions: Notes:

Estate of Alburn (WI 1963) (p. 264) a. Background: Testator executed a 1955 will (called “Milwaukee will” in opinion) and a 1959 will (“Kankakee will”). She later destroyed the Kankakee will, and evidence suggested she meant to revive her Milwaukee will by that revocation, but under WI law, revocation did not revive a prior will, so she was intestate. b. Holding: DDR may be invoked to render a revocation ineffective if the testator would not have revoked if testator revoked under the mistaken belief that revocation revived a prior will. c. Disposition: The revoked Kankakee will reinstated....