By: Attorney John McNally and Law Clerk Nancy Cattani

Death is an inevitable part of life, but dealing with the aftermath of a person's death can be a challenging and emotional experience for their loved ones. When a person passes away, their estate will typically pass through probate court to ensure their debts are paid, their assets are distributed according to their wishes, and their affairs are wound up properly. However, disputes can arise during the probate process, especially if the decedent’s intentions were not clear or if disagreements arise among heirs, beneficiaries, or creditors. In some cases, family members or other beneficiaries may believe that an estate was mismanaged or that a person's assets were not distributed correctly. In these situations, fiduciary litigation may be necessary, and interested parties may take action against a party, such as an executor or trustee, for failing to properly execute their fiduciary duties. 

Issues that May Be Addressed Through Fiduciary Litigation

Multiple parties may be able to pursue litigation against a person who was responsible for managing an estate and following the instructions of the deceased. These cases may seek to address financial concerns or other matters, including:

Recently, the BBC reported that the last will and testament of Prince Philip, the late husband of England’s Queen Elizabeth II, would be sealed for 90 years following his death in April of 2021. While the laws surrounding wills are different in the United States, and they can vary from state to state, some Americans may have wondered if they can take advantage of similar options to ensure that their private affairs will not be made public following their death. By understanding how probate matters are handled in Wisconsin, the state’s residents can determine the best steps they can take to make sure their wishes will be followed correctly while maintaining privacy whenever possible.

Wills and Probate Court

Following a person’s death, the executor of their estate will file their last will and testament in probate court. During the probate process, the executor will take an inventory of the estate, pay any applicable debts or taxes on behalf of the decedent, and distribute the person’s assets to their heirs while following the instructions the decedent provided in their will. Matters handled in probate court are part of the public record, which means that the contents of a last will and testament will be publicly accessible. Court records related to probate litigation will also be available to the public.

When a person creates a last will and testament, they will make decisions about what should be done with their property and assets after their death. A person may choose to divide their assets among their loved ones, including their spouse, children, or other family members, and they may also specify that money or assets should be donated to charity or used for other purposes. In some cases, a person who expected to receive an inheritance may find that they were excluded from their loved one’s will, and they may wish to pursue probate litigation to address this issue. In these situations, a person will need to understand their rights and legal options.

Contesting a Will in Wisconsin

The terms of a person’s last will and testament will generally be followed, as long as the will was valid and executed correctly. In some cases, a presumed beneficiary may contest the validity of a will. A beneficiary may claim that the person did not have “testamentary capacity,” meaning that they were not of sound mind when they created their will or did not fully understand the decisions being made. A will may be challenged if a beneficiary believes that someone exerted “undue influence” on the person, such as by threatening or coercing them into creating a will that went against their actual wishes. Challenges to a will may also be based on claims of fraud or forgery, such as the belief that the will was altered by another party after it was signed.

Even if a will is valid, Wisconsin law provides for a few situations where a person’s beneficiaries may have been inadvertently excluded. These could include:

There are multiple types of trusts that can help protect assets. When a trust is created, assets will be placed in the control of a trustee, who will ensure that money or property will be properly distributed to the beneficiaries named in the trust. However, disputes can sometimes arise between the beneficiaries of a trust and the trustee. In these cases, beneficiaries will need to understand their legal options, including whether they can pursue litigation and what remedies may be available for a breach of trust.

Breach of Trust Litigation

A trustee owes a fiduciary duty to the beneficiaries of a trust. This means that they are required to act in the beneficiaries’ best interest when managing the assets in the trust and distributing assets to beneficiaries. Beneficiaries may believe that a trustee has committed a breach of trust if they failed to follow their fiduciary duty. For example, a trustee may be accused of mismanaging the trust’s assets or using assets in the trust to pay themselves more than what would be appropriate. A trustee may also have a conflict of interest when managing assets, such as by using the funds in the trust to invest in a business that they own.

If beneficiaries believe that a trustee has committed a breach of trust, they may pursue litigation to address this issue. If the court finds that a breach of trust occurred, one or more of the following remedies may be ordered:

Issues related to adult guardianship have been in the news recently due to a prominent legal case involving Britney Spears. The pop star has spoken out against the conservatorship that has given her father and others control over her life and finances. Because of this, people in Wisconsin may be curious about their own rights in guardianship cases. Those who are looking to establish guardianship or conservatorship for an adult and people who may need assistance with their personal or financial needs can consult with an estate planning attorney to understand their rights and options.

Details of Britney Spears’ Conservatorship Case

As a person who is in the public eye, Britney Spears’ personal struggles have been well-known. Following a meltdown in the mid-2000s, she was placed on an emergency psychiatric hold, and this led people close to her to establish a conservatorship in which her father, Jamie Spears, and other people assumed control over her personal and financial affairs. While some people involved have stated that this conservatorship was meant to be temporary, it has remained in place for 13 years. Ms. Spears has attempted to get out of this legal agreement, and she has claimed that she has been forced to take medications against her will and that she has no control over whether she can get married or have children. Notably, Jamie Spears has received compensation for serving as his daughter’s conservator, including an annual salary of $130,000 and a percentage of the revenues from her performances.

Guardianship and Conservatorship in Wisconsin

Since Ms. Spears lives in California, that state’s laws apply to her conservatorship case. For those who live in Wisconsin, matters may be handled somewhat differently. Wisconsin law allows for the appointment of a guardian for an adult, although a guardian can only be appointed against a person’s will if a court determines that they are incompetent. Typically, incompetence involves an impairment that has resulted in a substantial, long-term disability. Applicable impairments may include developmental disabilities, serious mental illnesses, or degenerative brain disorders such as Alzheimer’s disease. An impairment must have resulted in a lack of “evaluative capacity” that has caused a person to be unable to evaluate information effectively or impacted their ability to make decisions about their personal health or finances.