Attorney Could Testify as to Testator’s Intent on Property
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Sept. 12, 2012 – An attorney who drafted a will was allowed to
testify about his client’s property distribution intent after the
client died, according to a state appeals court.
Ramona Czaplewski argued that attorney Karl Dovnik’s testimony was inadmissible
hearsay under Wisconsin’s dead man’s statute, Wis. Stat. section 885.16,
which limits the ability of a witness to testify about communications
with a person before the person died.
Dovnik testified that his client, Donald
Shepherd (Ramona’s father), intended by will to give one-third of
his property to each of his two sons, and divide the remaining one-
third equally between Ramona and Ramona’s two daughters (Donald
However, the will did not specifically reference Donald’s power
of appointment to make this distribution, and a Marital Settlement
Agreement (MSA) that Donald entered into with his late wife
required a surviving spouse’s will to specifically reference the
power of appointment.
The MSA determined that Ramona, along with her two
brothers, would each receive one-third if a surviving spouse did not
specifically exercise a power of appointment. Thus, Ramona argued the
MSA controlled, and she (and she alone) was
entitled to one-third of the property.
However, the District II Wisconsin Court of Appeals in Czaplewski v. Shepherd, 2011AP2521 (Sept. 12, 2012), ruled that Donald
Shepherd’s will controlled the distribution, the attorney could
testify, and Wisconsin’s power of appointment statute did not
demand a different result.
Power of Appointment and Dead Man’s Statutes
Wis. Stat. section 702.03(1),
if a donor requires an instrument to specifically reference a power of
appointment, “the donor's intention in requiring the reference
is presumed to be to prevent an inadvertent exercise of the power.” Extrinsic evidence may be used to
However, the appeals court explained that the presumption “can be
overcome if it can be demonstrated that the donee had knowledge of
and intended to exercise the power.”
After his wife died in 2005, Donald Shepherd invoked his power of
appointment specifically through a will executed in 2007. The 2007 will
altered the MSA by giving a one-ninth property interest to
each of his granddaughters, Ramona’s two daughters.
In 2010, Donald executed a codicil that changed his personal
representative from one son to the other. Less than a month later,
Donald executed another will, the 2010 will, which revoked all previous
wills and codicils. The 2010 will changed the personal representative
back again, but the distribution plan remained the same as the 2007
Unlike the 2007 will, the 2010 will did not make a specific reference
to Donald’s power of appointment under the MSA. Dovnik admitted this
inadvertent omission, but testified that Donald intended the
distribution plan to be the same as the 2007 will.
Ramona argued that without the specific reference to Donald’s
power of appointment granted in the MSA, the will was invalid
and the MSA controlled. The appeals court
“Insofar as Ramona contends that the current statute still
requires an express reference to the power of appointment, we
disagree,” wrote Judge Lisa Neubauer for a
three-judge panel, noting legislative changes in 2008 that focused on
giving effect to a testator’s intent.
The extrinsic evidence, the appeals court explained, established that
Donald knew of and intended to exercise the power of appointment through
the 2010 will.
The appeals court also rejected Ramona’s argument that Dovnik was barred from testifying as to
Donald’s intent. It ruled that the circumstances surrounding
execution of the will created ambiguity and thus use of extrinsic
evidence was appropriate.
“[T]he drafting attorney’s testimony concerning the
statements the testator made is admissible as extrinsic evidence of the
testator’s intent,” Judge Neubauer wrote.
The state’s dead man’s statute did not bar the testimony as
hearsay, the appeals court explained, noting that “Ramona ignores
established Wisconsin law recognizing that the testimony of a drafting
attorney as to the statements made to him or her by the testator are
admissible on the question of intent once such extrinsic evidence