Probate and trust litigation sits at the intersection of family, money, and grief. Those pressures can give rise to litigation among family members, potential beneficiaries, and the fiduciaries responsible for administering the estate. This article surveys the principal claims that arise in post-death administration, including challenges to the validity of an estate plan, fiduciary misconduct, and the ancillary tort and statutory claims that add procedural complexity to fiduciary litigation.

Challenges to Estate Planning Documents

Perhaps the most familiar form of probate and trust litigation is a challenge to the validity of a decedent’s estate plan. Separate procedures and statutes of limitation govern challenges to a decedent’s will and trust. As a threshold matter, a will must be “proven” and admitted to probate before a personal representative is appointed.^[1] Failure to meet this requirement can lead to a delayed will contest.^[2]

Because a revocable trust is administered outside of court, there is no comparable filing requirement. Instead, a challenge to a revocable trust’s validity must be brought within one year after the settlor’s death or four months after the trustee sends notice of the trust’s existence — whichever is earlier.^[3]

In Wisconsin, there are two common ways estate planning documents are challenged: (1) lack of testamentary capacity and (2) undue influence.

1) Did the Decedent Have Testamentary Capacity? Testamentary capacity is the mental threshold required to create a will or trust. A person who lacks testamentary capacity is legally incapable of signing most estate planning documents. The test for mental capacity varies with the type of estate planning document.^[4] These cases most often arise when a decedent signed new or amended documents late in life or showed signs of mental impairment around the time of signing.

The operative question for wills and trusts in testamentary capacity cases is whether, when the testator signed the instrument disposing of the testator’s assets, the testator understood the following: (1) the nature and extent of the testator’s property, (2) the testator’s relationship to the “natural objects of his bounty” (usually close family), and (3) the contents of the document.^[5] A general condition of impairment is only “peripherally relevant” since a person may execute a valid instrument during a lucid interval.^[6]

Capacity challenges rely heavily on proximate, contemporaneous evidence. Often, a medical expert is needed to opine on the testator’s mental state when he or she signed the documents. A claim may struggle to meet the burden of proof if it rests on records from months before execution and no expert ties that evidence to the operative date.

2) Was the Decedent Unduly Influenced? Estate planning documents may also be invalidated if the testator was unduly influenced into signing them. Undue influence occurs when someone uses influence, or a confidential or fiduciary relationship, to pressure or manipulate a person into changing a will or trust so that it reflects the influencer’s wishes rather than the testator’s. These disputes often arise when a caregiver, a second or subsequent spouse, or an agent facilitates a late-in-life change that redirects assets in his or her favor — particularly when the testator’s cognition had declined, and a previously unconnected attorney prepared the documents. Sometimes the bad actor is aided, or encouraged, by other people to undertake the undue influence.

Wisconsin recognizes two paths to prove undue influence. The four-element test requires (1) clear and convincing evidence that the testator was susceptible to influence, (2) the influencer had an opportunity to exert it, (3) the influencer was disposed to influence, and (4) the result reflects that influence.^[7] The two-element test requires proof of a confidential or fiduciary relationship coupled with suspicious circumstances.^[8]

Notably, a confidential relationship can include the relationship between spouses, and bad acts by a spouse can also give rise to additional claims under the Wisconsin Marital Property Act. Claims of undue influence are often brought in conjunction with instances of lack of testamentary capacity, but that is not a prerequisite to succeed on an undue influence claim.

Missing or Lost Wills

Another issue that may arise after a person’s death is a missing or lost will. When an original will has been lost or accidentally destroyed or is otherwise missing, Wisconsin law allows the probate court to accept other proof of the will’s contents and confirm its validity.^[9] To succeed, the proponent must show that the decedent signed a valid will, the will was last known to be in the decedent’s possession, and it could not be found after the decedent’s death.^[10] Even then, the law presumes the decedent destroyed the will in order to revoke it. The proponent can overcome that presumption by showing, by a preponderance of the evidence, that the will was not intentionally destroyed by the testator.^[11]

A natural question is whether the missing will was hidden or destroyed by another party. When a disinherited heir had a strained relationship with the decedent and an opportunity to make the will disappear, that can be strong evidence the will was concealed rather than revoked by the testator. A Wisconsin court rejected the presumption of destruction in a case in which the decedent was estranged from his son and had a history of legal battles with him, and family members who stood to lose out had access to the will in his lockbox.^[12]

Issues with a Personal Representative or Trustee

A key part of estate planning is choosing a personal representative or trustee. These individuals act as fiduciaries and owe legal duties to the estate or trust and its beneficiaries. Unfortunately, sometimes the person appointed, however well-intentioned, is ill-suited for the role — or worse, takes advantage of the position for personal gain. In those cases, the beneficiaries or co-fiduciaries must step in to stop the misconduct.

Claims Against a Personal Representative. The personal representative administers the decedent’s estate according to the will and winds up the decedent’s affairs.^[13] Core duties include collecting and inventorying assets, contesting invalid claims, rendering accounts, and making distributions to beneficiaries.^[14] In exchange, the representative is entitled to reimbursement of necessary expenses and to statutory compensation, though one who is “derelict in duty” may have that compensation reduced or denied.^[15]

An interested person may petition to remove the personal representative. Removal is sometimes mandatory and sometimes discretionary. The court shall remove a representative who is adjudicated incompetent, disqualified, unsuitable, or incapable of discharging the duties, or who is a nonresident with no resident agent on file. The court may remove a personal representative who has failed to perform a legal duty or a lawful court order or who has left the state.^[16] Good-faith legal mistakes are not, by themselves, grounds for removal.^[17]

In certain circumstances, a personal representative may be surcharged for “the value of any property or effects wrongfully received or taken and for all damages caused by his or her acts to the estate.”^[18] A representative’s removal does not invalidate official acts already performed, and the court will appoint a successor who assumes the predecessor’s rights and powers.^[19]

Breach of Trust. The Wisconsin Trust Code imposes comprehensive fiduciary duties on trustees, including the obligations to administer the trust in good faith and in accordance with its terms; the duty of loyalty, requiring the trustee to administer the trust “solely in the interests of the beneficiaries”; and the duties of impartiality, prudent administration, and keeping beneficiaries reasonably informed.^[20]

If there is evidence that a trustee has not complied with one or more of these obligations, such as by acting against the beneficiaries’ interests or failing to administer the trust impartially, a beneficiary may petition the probate court to remove the trustee. If a trustee’s breach results in monetary damages, the trustee is liable to the affected beneficiary for the amount needed to restore the trust’s value or the profit the trustee realized from the breach — whichever is greater.^[21]

When there are multiple trustees, each must exercise reasonable care to ensure the others do not commit a material breach of trust. A trustee who discovers a co-trustee’s material breach must take reasonable steps to compel the breaching trustee to redress it, which may include petitioning the probate court.^[22]

Beneficiaries should be aware of the statute of limitation for claims against trustees. The window is relatively short if the trustee has provided a report that “adequately disclosed the existence of a potential claim for breach of trust”: a beneficiary then has one year to sue.^[23] If that one-year rule does not apply, the action must be brought within five years after the first to occur of the trustee’s removal, resignation, or death; the termination of the beneficiary’s interest; or the termination of the trust.^[24] These limitations do not apply to fraud claims, which are governed by the applicable statute of limitation.^[25]

Fiduciary Misconduct During the Decedent’s Lifetime

Many post-death disputes are rooted in conduct that occurred before the individual died — most often misuse of a durable power of attorney. We have seen this increasingly in our practice. An agent owes fiduciary duties of loyalty, good faith, care, and competence, and the grant of authority to an agent under a power of attorney itself creates a fiduciary relationship.^[26] Agents who divert funds, write unauthorized checks, or use the principal’s assets for personal benefit breach those duties, and an agent’s obligation to account survives the decedent’s death.

Sometimes a third party influences an individual, while the individual is still alive, to name them as financial agent. This often occurs alongside other updates to the individual’s estate plan, typically to the bad actor’s advantage. The agent then abuses the role to misdirect funds by updating the beneficiary designations on the individual’s accounts, so the funds are transferred to the agent upon the individual’s death. These two levels of misconduct — the undue influence exerted to procure the power of attorney and the unauthorized conduct by the “agent” — often require multiple civil claims to unwind the transaction.

A personal representative or the estate’s successor in interest may request the agent’s receipts or other records of disbursements or transactions the agent conducted on the principal’s behalf, and the agent has 30 days to comply.^[27] The information disclosed may lead to claims by the personal representative on behalf of the decedent, including civil theft or conversion.

Claims by Third Parties

Disputes may also arise between an estate or trust and a third party, most often a creditor seeking to recover funds owed during the decedent’s lifetime.

In a probate administration, the court sets a claims deadline of at least 3 and no more than 4 months. Subject to limited exceptions, all claims not filed by that date are “barred against the estate, the personal representative and the heirs and beneficiaries of the decedent.”^[28] This deadline is generally strict unless the claim arises from tort, tax obligations, or funeral and administrative expenses or is held by a creditor who lacked notice of the deadline and whom the personal representative knew or should have known about.^[29] A claim already time-barred at death remains barred, while one still viable at death is preserved if filed by the deadline.^[30]

A personal representative, a guardian ad litem, or — with the court’s approval — an interested person may contest a filed claim believed to be invalid. The objection is made by mailing or personally serving a copy of the objection to the claimant and filing it with the court.^[31] Depending on the claim, additional briefing and an evidentiary hearing on its validity might follow, which can prolong the administration.

A revocable trust is not a shield against the settlor’s creditors. During the settlor’s lifetime, revocable trust property remains subject to the claims of the settlor’s creditors; after death, that property can be tapped for the settlor’s debts, costs of administration, funeral and burial expenses, and statutory spousal and child allowances to the extent the probate estate is inadequate.^[32] Because a fully funded revocable trust may avoid probate altogether, the Wisconsin Trust Code provides a claims procedure that parallels the probate process.^[33]

Related Civil Claims

So far, the issues discussed fall under the jurisdiction of Wisconsin’s probate courts. In addition, some types of civil claims might be filed in post-death disputes. The civil and probate cases are then consolidated and adjudicated together.

One such claim is civil theft, which allows a wronged party to recover for the wrongful taking of property (“theft”) and provides for treble damages.^[34] This remedy has real teeth in the fiduciary context, when an agent or nonfiduciary has converted trust or estate assets over an extended period, and can be a powerful motivator for settlement.

Another civil claim is the tort of intentional interference with an expected inheritance. It provides a remedy when a defendant uses fraud, duress, or undue influence to wrongfully deprive an expectant beneficiary of a bequest that the person would otherwise have received.^[35] Often pleaded alongside undue influence and conversion, it can reach conduct that traditional will-contest remedies do not fully address, underscoring how modern estate litigation increasingly blends probate, trust, and tort theories.

Conclusion

Most estate and trust administration proceeds without incident. But the disputes that do arise tend to follow recognizable patterns: a late-life change to an estate plan, a fiduciary who serves his or her personal interests, an interested party positioned to act before or after death. Often those patterns are visible well before litigation, and that is when the estate planner adds the most value. The facts that later support a claim, such as declining capacity or an unfamiliar drafter, are the same ones that careful drafting and documentation can guard against at the planning stage. For attorneys, the takeaway is less a list to memorize than a habit of mind: read the facts for every theory they might support, note the limitation period attached to each, and advise accordingly — whether the client is a fiduciary defending an administration, a beneficiary challenging one, or a creditor seeking payment.

Endnotes

[1] Wis. Stat. § 856.13. ^

[2] Wis. Stat. § 856.05(1). This rule is not well publicized, which means in practice, many people fail to meet the 30-day deadline. ^

[3] Wis. Stat. § 701.0604(1)(a)–(b). ^

[4] The test for testamentary capacity varies based on the type of document. See, e.g., Wis. Stat. § 155.05(1). ^

[5] O’Brien v. Lumphrey (In re Est. of O’Loughlin), 50 Wis. 2d 143, 146–47, 183 N.W.2d 133 (1971). ^

[6] Becker v. Zoschke (In re Est. of Becker), 76 Wis. 2d 336, 345, 251 N.W.2d 431 (1977). ^

[7] Lee v. Komesar (In re Est. of Kamesar), 81 Wis. 2d 151, 259 N.W.2d 733 (1977). ^

[8] Hamm v. Jenkins (In re Est. of Hamm), 67 Wis. 2d 279, 227 N.W.2d 34 (1975). ^

[9] Wis. Stat. § 856.17. ^

[10] Fonk v. Zastrow (In re Est. of Fonk), 51 Wis. 2d 339, 341, 187 N.W.2d 147 (1971). ^

[11] Id.; Robert C. Burrell & Jack A. Porter, Lost Wills: The Wisconsin Law, 60 Marq. L. Rev. 351, 352 (1977). ^

[12] Wendt v. Ziegenhagen (In re Ziegenhagen’s Will), 148 Wis. 382, 134 N.W. 905, 907–08 (1912). ^

[13] Wis. Stat. § 857.01. ^

[14] Wis. Stat. § 857.03. ^

[15] Wis. Stat. § 857.05. ^

[16] Wis. Stat. § 857.15. ^

[17] DiBenedetto v. Jaskolski (In re Est. of Thompson), 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869. ^

[18] Wis. Stat. § 877.08. ^

[19] Wis. Stat. §§ 857.17, 857.21, 857.23. ^

[20] Wis. Stat. §§ 701.0801, 701.0802(1), 701.0803, 701.0804. ^

[21] Wis. Stat. § 701.1002(1). ^

[22] Wis. Stat. §§ 701.0201, 701.0703(7). ^

[23] Wis. Stat. § 701.1005(1). ^

[24] Wis. Stat. § 701.1005(3). ^

[25] Wis. Stat. § 701.1005(4). ^

[26] Wis. Stat. § 244.14(1)–(2). ^

[27] Wis. Stat. § 244.14(8). ^

[28] Wis. Stat. §§ 859.01, 859.02(1). ^

[29] Wis. Stat. §§ 859.02(2), 859.45, 859.48. ^

[30] Wis. Stat. § 859.15. ^

[31] Wis. Stat. § 859.33(1). ^

[32] Wis. Stat. § 701.0505(1)(a). ^

[33] Wis. Stat. § 701.0508(1). ^

[34] Wis. Stat. § 895.446. ^

[35] Wicket v. Burggraf, 214 Wis. 2d 426, 429, 570 N.W.2d 889 (1997). ^