Meegan v. Netzer
Meegan v. Netzer
Opinion of the Court
¶ 1. The issue on this appeal concerns the doctrine of gift causa mortis, also called gift in contemplation of death.
BACKGROUND
¶ 2. Roger Hansen died intestate at the age of eighty-eight. Within the four months preceding his death, he met with an attorney on several occasions for the purpose of making a will, but he died shortly before the appointment at his attorney's office at which he was to sign the last draft his attorney had prepared. Hansen was survived by a brother, Lyle, a sister, their children, and the children of siblings who had predeceased him.
¶ 3. During Hansen's lifetime, he made mortgage loans to Lyle's three daughters and was the vendor on a land contract with a grandson of Lyle. At the time of his death, the total outstanding debt on these four notes was approximately $278,000. Lyle, as Hansen's personal representative, included these four notes in Hansen's probate estate.
¶ 4. The debtors and their spouses (collectively, the Netzers) moved to strike the notes from the inventory on the ground that Hansen forgave these debts prior to his death and that the pardons amounted to gifts causa mortis. Therefore, according to the Netzers, these notes are not part of Hansen's estate. The Netzers
¶ 5. The circuit court agreed with the Netzers and concluded that the affidavits established gifts causa mortis forgiving these debts. Therefore, the court granted the motion to strike these notes from the inventory. Meegan appeals that order.
DISCUSSION
¶ 6. Meegan contends that the evidence does not satisfy any of the elements of a gift causa mortis for any of the four notes. Therefore, according to Meegan, the four notes are properly part of the inventory of Hansen's estate and the court erred in striking them. The Netzers respond that the circuit court correctly decided that the evidence establishes all elements of a gift causa mortis for each of the four notes.
¶ 7. Because resolution of this issue requires the application of a legal standard to undisputed facts, our review is de novo. See Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 56, 520 N.W.2d 99 (Ct. App. 1994).
¶ 8. In the following paragraphs we first provide background law on the doctrine of gift causa mortis and then focus on the element requiring delivery of the gift
¶ 9. The general rule is that a testamentary disposition (a disposition that takes effect upon the death of the person making the disposition) must comply with the statutory requirements for the execution of wills. See Waukesha State Bank v. Moore, 86 Wis. 2d 593, 598, 237 N.W.2d 329 (1979).
¶ 10. The requirements of a valid gift causa mortis are: (1) the donor has an intention to make a gift effective at death; (2) the donor makes the gift "with a view to the donor's death from present illness or from an external and apprehended peril"; (3) the donor must die of that ailment or peril; and (4) there must be a delivery. Id. (citing Hoks v. Wollenberg, 209 Wis. 276, 243 N.W. 219 (1932)).
¶ 12. Turning our attention to the delivery requirement of a gift causa mortis, we begin with the principle that this requirement is the same as it is for a
¶ 13. In this case the subject matter claimed to be the gift causa mortis is the forgiveness of a debt. The forgiveness of a debt may be a gift. Hoks v. Wollenberg, 209 Wis. 276, 280, 243 N.W. 219 (1932). The Netzers contend, and the circuit court agreed, that delivery of the forgiveness of the debts occurred when Hanson wrote a notation on a draft of his will prepared by his attorney and delivered a letter to his attorney. Specifically, on a draft of Hansen's will prepared by his attorney, Hansen wrote: "Wendy, Shelly and Rhonda [Lyle's daughters] will have their property cleared." Then, after receiving a revised draft with that change incorporated, Hansen wrote a letter to his attorney and dropped it off at his attorney's office.
*468 2/16/09
Dear Lan
I think the way this will has been put together looks good to me. We did however forget to include the land contract between Roger T. Hansen and Shirley P Hansen as tenants in common and Brad Sillman [Lyle's grandson]. In the event of my death I direct that my personal representative cancel and forgive any indebtedness to me at the time of my death by Brad Sillman. This will omit my monthly payment but still have an obligation to Shirley P Hansen.
Roger T. Hansen
¶ 14. The Netzers' theory of delivery has two components. First, they contend that Hoks and Baltes, read together, establish that writings extrinsic to the debt instrument — writings like Hansen's notation on the draft will and the letter to his attorney — may be the means of canceling a debt, and that delivery of a gift of forgiveness of a debt may be accomplished without surrendering the debt instrument. Second, they contend that, under Prosser v. Nickolay, 249 Wis. 75, 23 N.W.2d 403 (1946), the gifting instruments — Hansen's notation on the draft will and his letter — may be delivered to a third-party trustee instead of directly to the donees; and, they assert, Hansen's attorney is a third-party trustee.
¶ 15. We agree with the Netzers to the extent they argue that delivery of a gift of forgiveness of a debt may be accomplished by means other than delivering the debt instrument with signed writing on it canceling the debt. See Hoks, 209 Wis. at 282 (concluding that delivery requirement for a gift causa mortis canceling a debt was satisfied by the following events: the donor had a written statement prepared in which she stated that upon her
¶ 16. Prosser does not support the Netzers' position that the delivery to Hansen's attorney of Hansen's notation on the draft will regarding Lyle's daughters and the letter regarding Lyle's grandson constitute delivery of the gifts of forgiveness of those persons' debts. In Prosser, the question presented was whether an attempted conveyance of real property was valid. Prosser, 249 Wis. at 76. The decedent, shortly before his death, instructed his attorney to prepare a deed conveying certain property to his wife. Id. The attorney did so, the decedent and witnesses signed the deed, and it was notarized. Id. At the time the deed was executed, the legal description of the property was not available. Id. The decedent instructed his attorney to obtain the proper description, insert it, record the deed, and deliver it to his wife. Id. The attorney took the deed to his office and inserted the proper description before the decedent's
¶ 17. The validity of the conveyance was challenged on two grounds: (1) the deed was not duly executed because at the time it was executed it was missing the legal description of the property; and (2) there was no valid delivery of the deed to the decedent's wife prior to the decedent's death. Id. at 76-77. The court rejected both challenges, noting that the property description was later added to complete the conveyance and citing case law establishing that "a deed delivered to a third person with instructions to record it and deliver it to the grantee after the grantor's death becomes effective upon delivery to the third person who thereafter holds as trustee for the grantee." Id. at 77 (emphasis added) (citations omitted). Consequently, once the missing description was added, the property conveyance was complete because the deed contained all required information and the attorney held the deed as trustee for the decedent's wife. Id.
¶ 18. The facts in this case are not analogous to those in Prosser. A complete delivery occurred in Prosser at the point in time when the attorney held a completed deed with instructions to deliver it to the donee. Id. In contrast, in this case Hansen did not instruct his attorney to deliver to the debtors his notation on the draft will and the letter to his attorney. Indeed, that was plainly not the purpose for which Hansen gave his attorney these writings. Hansen's purpose for giving his attorney these writings was so that his attorney could include provisions to this effect in his will. There is no factual basis for asserting that Hansen's attorney held these writings in trust for the debtors. Thus, the delivery to the attorney, with no instruction for delivery to any debtor, does not constitute delivery to any debtor.
CONCLUSION
¶ 20. We reverse the court's order excluding from the inventory the three mortgage notes from Hansen's nieces and the land contract note from Hansen's great-nephew, and we remand for further proceedings.
Order reversed and cause remanded for further proceedings.
Black's Law Dictionary 757 (9th ed. 2009).
Because Hansen died intestate and had no surviving spouse, surviving domestic partner, issue, or parent, his estate passes to his siblings and to the issue of deceased siblings per stirpes. Wis. Stat. § 852.01(l)(d) (2009-10). All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
In order to be validly executed, a will must be in writing and signed by the testator, or in the testator's name if certain conditions are met, and it must be signed by two witnesses under conditions specified in the statute. See Wis. Stat. § 853.03.
The Netzers refer to the "three elements" of a gift causa mortis, citing to Hoks v. Wollenberg, 209 Wis. 276, 243 N.W. 219
Generally, a gift inter vivos, in contrast to a gift causa mortis, passes immediate and irrevocable title upon the gift being completed. See Hoks, 209 Wis. at 280. A gift inter vivos is completed when the donor delivers the subject of the gift with the intention to part with the donor's interest in the property given. Potts v. Garionis, 127 Wis. 2d 47, 51, 377 N.W.2d 204 (Ct. App. 1985) (citations omitted).
Because of this conclusion it is unnecessary to resolve the parties' dispute over the circuit court's consideration of Hansen's death certificate, which Meegan asserts was submitted by the Netzers in violation of a stipulation between the parties. Evidence of the cause of Hansen's death is relevant to the requirement that the donor of a gift causa mortis die of the ailment or peril the donor contemplated at the time he or she made the gift. The death certificate is not relevant to the delivery requirement.
Reference
- Full Case Name
- In re the estate of Roger T. Hansen: Peggy Meegan v. Mark Netzer, Shelly Netzer, James Cole, Ronda Cole, Mark Sillman, Wendy Sillman and Bradley Sillman
- Cited By
- 1 case
- Status
- Published