COURT OF APPEALS

DECISION

DATED AND FILED

April 28, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2019AP607 Cir. Ct. No. 2018PR962

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

IN RE THE ESTATE OF ARTHUR HENRY WISTH:

WILLIAM WISTH,

APPELLANT,

V.

JEAN GORSKI,

RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County: 

MARSHALL B. MURRAY, Judge. Reversed and cause remanded with 

directions. 

Before Brash, P.J., Dugan and Donald, JJ. 
No. 2019AP607

2

¶1 DONALD, J. William Wisth (Wisth) appeals an order of the 

probate court denying his petition for administration of the estate of his father, 

Arthur Wisth (Arthur). Wisth argues that the probate court erred in refusing to 

appoint a personal representative because Wisth has a contract claim against 

Arthur’s estate. Specifically, Wisth contends that he and Arthur executed an

agreement that transferred certain real property to Wisth upon Arthur’s death. 

Because we conclude that the probate court should have appointed a personal 

representative to address Wisth’s claims, we reverse and remand this matter back 

to the probate court.

BACKGROUND

¶2 On March 5, 1999, Arthur and Eleanor Wisth executed the Arthur H. 

Wisth and Eleanor P. Wisth 1999 Revocable Trust. The trust provided that upon 

the surviving spouse’s death, Arthur and Eleanor’s assets were to be distributed 

primarily among their three children—Jean Gorski, William Wisth, and 

James Wisth. The trust provided that the assets were to be evenly distributed 

between the children, except that Wisth’s share would be $200,000 “less in value 

than the shares of his siblings.” 

¶3 Approximately two months later, on May 19, 1999, Wisth and 

Arthur allegedly1entered into a written agreement whereby Wisth, by his 

corporation B.W. Properties, Inc., conveyed multiple items of real estate to 

Arthur’s limited liability company, AHW Properties, LLC, because Wisth was 

experiencing personal financial difficulties and was unable to pay the mortgages 

 

1

 The Respondent raises concerns about the validity of the agreement. Whether the 

agreement is valid is irrelevant to the question on appeal. 
No. 2019AP607

3

on the properties. According to the agreement, Arthur would bring the properties 

current on their mortgages and return the properties to Wisth upon his death. 

¶4 In April 2008, Arthur and Eleanor jointly executed an amendment to 

the 1999 Revocable Trust. The amendment expressly cut Wisth out of the estate 

plan and divided Arthur and Eleanor’s estate between two children—Jean Gorski 

and James Wisth. The amendment specifically stated that Arthur and Eleanor 

“make no provision for our son, William A. Wisth, or for any of his issue.” No 

other amendments were made to the trust. 

¶5 Eleanor passed away on May 2, 2017. Arthur passed away on 

April 29, 2018. Prior to Arthur’s death, James Wisth also passed away, leaving 

Gorski as the sole beneficiary pursuant to the trust amendment. 

¶6 On June 7, 2018, James Mulligan filed the action underlying this 

appeal. Mulligan petitioned for the appointment of a special administrator for the 

sole purpose of accepting service on behalf of the estate in a foreclosure action in 

which the estate was a named party.

2

 A few weeks later, Wisth filed a letter with 

the circuit court requesting to be added to the action as an interested party based 

on the agreement between Wisth and Arthur. The letter stated that four specific 

properties in the estate were affected by the agreement. Wisth also filed the 

agreement between himself and Arthur with his letter to the circuit court. 

¶7 On September 7, 2018, Wisth petitioned the probate court for a 

formal administration. The petition requested that the probate court appoint a 

 

2

 The foreclosure action was commenced in Milwaukee County against Mary Jones. 

Arthur was determined to be a necessary party to the foreclosure action because he held a prior 

small claims judgment against Jones.
No. 2019AP607

4

personal representative and that the personal representative be directed to deed the 

four properties at issue from Arthur’s estate to Wisth. The probate court issued an 

order setting a date and time for a hearing on the petition. The order was 

subsequently published. Consequently, Gorski became aware of Wisth’s action 

and objected to his petition. Gorski’s objection was based on the terms of the 

2008 trust amendment, which specifically removed Wisth as a beneficiary of any 

portion of Arthur and Eleanor’s estate. 

¶8 At the hearing on Wisth’s petition, the probate court asked Wisth 

whether his petition constituted a challenge to Arthur’s will. Wisth, through 

counsel, told the probate court that he was not challenging the will, but rather was 

raising a contract claim based on the agreement between Wisth and Arthur. The 

probate court denied Wisth’s petition, stating that the 2008 trust amendment

reflected Arthur and Eleanor’s final wishes, which included their intention to 

disinherit Wisth. The probate court stated:

Assume that there was an agreement, I believe that 

the codicil in the trust changed [Arthur’s] intent and his 

wife’s intent as to what they wanted to do for their son.

If [Arthur and Eleanor] had wanted to give money 

to their son for the benefit of the properties they received, 

they could have done that but they chose not to do that and 

it was well after the alleged agreement. It’s the last voice. 

The last thing they said. And I wish it weren’t so because I 

don’t like to see these family disputes but it’s clear the 

clear intent of [Arthur and Eleanor] was that their son not 

take and that I believe is the answer to the question.

....

[The amendment] changed as of what they wanted. 

The property went to his father. Once the property went to 

his father, it became marital property. It required really 

both signatures of the mother and father to transfer—any 

agreement—and that’s another issue but that didn’t happen 

except after the agreement they both said, you know what, 

we don’t want our son to get anything.
No. 2019AP607

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I don’t know why and I don’t need to know the 

reason why. If there was an agreement, I accept that fact, 

there was an agreement and the agreement was broken or 

nullified by what they did in their trust. That was their last 

voice and that’s what I’m going to abide by so I’m granting 

the petition—I’m denying the petition for formal 

administration. 

This appeal follows.

DISCUSSION

¶9 The construction of a testamentary document presents a question of 

law. See Holy Family Convent v. DOR, 157 Wis. 2d 192, 195, 458 N.W.2d 579 

(Ct. App. 1990). We review questions of law independently without deference to 

the decision of the circuit court. See Scheunemann v. City of West Bend, 179 

Wis. 2d 469, 475, 507 N.W.2d 163 (Ct. App. 1993). This case also requires us to 

make a determination pursuant to WIS. STAT. § 856.07 (2017-18),

3 which also 

presents a question of law that we review de novo. See Bell v. Neugart, 2002 WI 

App 180, ¶15, 256 Wis. 2d 969, 650 N.W.2d 52.

¶10 At issue in this appeal is whether the probate court erred in denying 

Wisth’s petition for special administration pursuant to WIS. STAT. § 856.07. Wisth 

contends that because he had a cause of action against the estate sounding in 

contract, the appointment of a personal representative was necessary to address his 

claim. We agree.4

 

3

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.

4

 We emphasize that we do not address the validity of the alleged agreement between 

Wisth and Arthur, nor do we address the validity of Wisth’s claim against Arthur’s estate. We 

decide this appeal on the very narrow issue before us, which is whether the probate court should 

have appointed a personal representative in the matter.
No. 2019AP607

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¶11 WISCONSIN STAT. § 856.07 states:

(1) GENERALLY. Petition for administration of the estate of 

a decedent may be made by any person named in the will to 

act as personal representative or by any person interested.

(2) AFTER 30 DAYS. If none of those named in sub. (1) has 

petitioned within 30 days after the death of the decedent, 

petition for administration may be made by any person who 

was guardian of the decedent at the time of the decedent’s 

death, any creditor of the decedent, anyone who has a 

cause of action or who has a right of appeal which cannot 

be maintained without the appointment of a personal 

representative or anyone who has an interest in property 

which is or may be a part of the estate.

(Emphasis added.) As relevant to this case, the statute provides that any party 

having a cause of action against an estate, or an interest in property that may be a 

part of an estate, may petition the probate court for the appointment of a personal 

representative to address the party’s concerns. Applying the statute to the facts of 

this case, we conclude that Wisth’s petition clearly establishes the need for a 

personal representative.

¶12 Case law supports our conclusion. The Wisconsin Supreme Court’s 

decision in Darwin v. West, 246 Wis. 199, 16 N.W.2d 806 (1944), is instructive 

with regard to what procedure a probate court must follow when determining 

whether a contract external to a will affects an estate. In West, Mary West resided 

with her daughter, Fannie G. Darwin, from 1929 until 1933. Id. at 200. In 1930, 

while West still resided with her daughter, she purchased a home in Minnesota and 

placed the title to the home in Darwin’s name. Id. West paid for numerous 

improvements to the property, many of which were made by West’s husband. Id.

In September 1931, West made a will, naming Darwin as the executor and giving 

Darwin one-sixth of the residuary estate, which was an equal share with her 

siblings. Id. Two years later, in September 1933, West asked Darwin to deed the 
No. 2019AP607

7

Minnesota property to West and assured Darwin that changes had not been, and 

would not be, made to West’s will. Id. at 200-01. Darwin deeded the property 

back to West. Id. at 201.

¶13 In November 1942, however, West made a new will, which made no 

provisions for Darwin. Id. West passed away the following year, at which point 

Darwin discovered that her mother created a new will. Id. Darwin filed a claim 

against the estate alleging a breach of the agreement made in September 1933, in 

which Darwin agreed to deed the Minnesota home to West after West assured 

Darwin that no changes had been, or would be, made to West’s will. Id. Darwin 

sought damages in the amount of one-sixth the value of West’s estate, or 

alternatively, the reasonable value of the Minnesota home on the date Darwin 

deeded it to West. Id. Darwin also sought compensation for services rendered 

while Darwin and West lived together. Id.

¶14 The circuit court held a hearing to determine whether the evidence 

established an oral contract between West and Darwin to devise or bequeath 

property for a valid consideration. Id. at 203. The circuit court ultimately found 

that evidence did not support a finding of an oral contract between Darwin and 

West and our supreme court upheld that determination. Id.

¶15 Although the circuit court in West did not find the existence of an 

oral contract, the case is nonetheless instructive in this matter because it describes 

the procedural process the circuit court followed to inquire about whether Darwin 

had a legitimate claim against her mother’s estate. The probate court in this matter 

did not make such an inquiry. Rather, the probate court denied Wisth’s petition 

for a personal representative to address the contract claim, interpreting Wisth’s 

petition as a challenge to the will rather than as a claim against the estate. The 
No. 2019AP607

8

probate court based its decision on what it perceived to be Arthur’s final intent. 

The record establishes, however, that Wisth did not dispute Arthur’s intention to 

disinherit Wisth as reflected in the 2008 trust amendment. Rather, Wisth claimed 

to have a cause of action against the estate based on the contradiction between the 

terms of the contract he allegedly executed with Arthur and the 2008 trust 

amendment. Rather than inquire about Wisth’s claim, as the court did in West, the 

probate court concluded that regardless of whether a valid contract between Wisth 

and Arthur existed, Arthur’s intentions as expressed in the 2008 trust amendment 

took priority over any alleged contract. We conclude that under the language of 

WIS. STAT. § 856.07(2), however, Wisth was entitled to the appointment of a 

personal representative so that Wisth’s breach of contract claim can be 

appropriately addressed.

¶16 The Respondent raises numerous arguments that focus primarily on 

the merits of Wisth’s contract claim rather than the issue on appeal, which is 

whether the probate court should have appointed a personal representative to 

address Wisth’s cause of action. 

¶17 For the foregoing reasons, we reverse and remand this matter for 

further proceedings consistent with this decision.

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.