Kellogg-Citizens National Bank of Green Bay v. Borden ( 1982 )

FOLEY, P.J.

Kellogg-Citizens National Bank of Green Bay, guardian of the estate of George M. Hougard, incompetent, appeals an order denying its petition for authorization to execute a disclaimer of Hougard’s interest in the estate of his deceased wife. The circuit court concluded that the bank had not proven the disclaimer to be in Hougard’s best interest. Because the circuit court’s conclusion is correct, we affirm the order without reaching the remaining issues raised by the bank.

The circuit court is empowered to adjudicate all matters pertaining to an incompetent’s property. Guardianship of Hayes, 8 Wis. 2d 32, 36, 98 N.W.2d 430, 432 (1959). A guardian has the duty to manage a ward’s estate in the ward’s best interest. Guardianship of Nelson, 21 Wis. 2d 24, 28, 123 N.W.2d 505, 508 (1963); see also Guardianship of Pescinski, 67 Wis. 2d 4, 7, 226 N.W.2d 180, 181 (1975) (guardian must act in ward’s best interest in caring for the ward’s person). The trial court concluded that the evidence to prove that the disclaimer was in the ward’s best interest was insufficient. The court’s conclusion that the evidence was insufficient is a question of law. Cf. Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739, 742 (1969) (sufficiency of proof of a contract is a question of law). This court independently reviews questions of law. Johnson v. K-Mart Enterprises, Inc., 98 Wis. 2d 533, 539, 297 N.W.2d 74, 77 (Ct. App. 1980).

Although the facts are disputed, for purposes of this appeal we accept the bank’s contentions that Hougard is permanently incompetent, that he cannot change his present will, that he has sufficient assets for his present and future needs, and that his estate would gain an inheritance tax benefit by the disclaimer. The undisputed facts show that Hougard’s wife’s estate excludes one daughter of the parties, Hougard’s intended testamentary disposition, contained in his will on file with the circuit court, is unknown.

As long as Hougard’s intended testamentary disposition of his estate is unknown, the circuit court cannot find that the proposed diminution of his estate, which may be inconsistent with his intended testamentary disposition, is in his best interest. It is in Hougard’s best interest for the court to insure that his testamentary disposition is respected. The disclaimer would, however, be a gift to the beneficiaries of the estate of Hougard’s wife. It would substantially reduce Hougard’s estate. Although this may be consistent with his desires, it is equally reasonable to speculate that he intends a different disposition of his estate. Without Hougard’s real consent, see Pescinski, 67 Wis. 2d at 8, 226 N.W.2d at 182, which might be proven by his will and might then justify a different conclusion, the circuit court correctly denied the bank’s petition.

By the Court. — Order affirmed.