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Estate of Alburn

Citation. 8 Wis. 2d 340, 118 N.W.2d 919, 1963 Wisc
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Brief Fact Summary.

Ottilie L. Alburn executed two wills in her lifetime and destroyed the second will. Neither of the wills made any provisions to certain next-of-kin. Alburn’s niece, a beneficiary under her first will filed for probate and Alburn’s heirs at law appealed the decision.

Synopsis of Rule of Law.

Where the testator expresses an intent on reinstating a former will and there is no explanatory evidence, the testator will be deemed to have revoked his later will under the mistaken belief that he was reinstating his first will.


Alburn did not include certain next-of-kin in neither of her wills. Alburn’s original will that was drawn in Milwaukee was in the possession of Attorney Affeldt. This will named her niece Viola Henkely, whom she lived with while living in Milwaukee, as a beneficiary. In 1960 Alburn moved to Kanakee, Wisconsin and lived with her brother Robert Lehmann. She executed a second will in Kanakee. Later Alburn relocated to Fort Atkinson and lived there with her brother Edwin Lehmann until she died. Alburn did not make a new will between June 29, 1960 and nearly five months later when she died. While living with Edwin Lehmann in Fort Atkinson, she destroyed a copy of her will and tore it into pieces. Henkely filed a petition to probate Alburn’s first will that she made in Milwaukee. Alburns next-of-kin appealed and the Circuit Court affirmed the lower court’s decision. Edwin Lehmann’s wife gave testimony at the trial court that Alburn wanted her first will to stand.


Whether there a testator intends to reinstate his first will by revoking the second will if , (1) she makes a statement to another that he wants his first will to stand, and (2) she takes no steps following the destruction of the second will to make a new will, (3) there is no evidence disproving the facts showing intent on reviving the first will.


Yes. The evidence is sufficient to support a finding that a testator wants her first will to stand after revoking the second will where she (1) told her sister-in-law that she wanted her first will to stand , (2) took no steps to make another will after revoking the second will, and (3) there was no evidence negating the facts showing she intended to revive her first will. Furthermore, there was no evidence that any acts occurred subsequent to the revocation of the second will that suggested that the testator wanted to die intestate.


The Court will hold that a testator desired her first will to stand even where she revoked it by making another will, if the testator revokes the later document and there is no evidence showing that she wanted to die intestate
There was no evidence showing that she wanted to die intestate because she knew her first will was with her lawyer, there was no change in cirucumstances after she destroyed her second will suggesting she wanted her heirs at law to receive her estate. The testator intends for her first will to stand in conjunction with the fact that she did not create another will.

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