Jan. 2, 2024 – A Waukesha County Circuit Court erred by retaining jurisdiction over a bitter and long-running lawsuit about four siblings’ inheritance, the Wisconsin Court of Appeals has ruled in a per curiam decision.
In Tikalsky v. Tikalsky, 2020AP1345 (Dec. 6, 2023), the Court of Appeals District II held that the circuit court’s dismissal of one sibling’s claim of undue influence was proper.
Disinherited
In will and trust documents executed in 1999, Donald and his wife Betty Lou directed that most of their estate be divided equally between Steven and his three siblings.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
But in the early 2000s, relations between Steven and his siblings and parents soured. Subsequently, Donald and Betty Lou executed documents in the mid-2000s that progressively reduced Steven’s share of the estate. Ultimately, Steven was disinherited.
In 2009, Donald and Betty Lou hired an attorney to draft both a new will and set up a revocable living trust. Those documents, which Donald and Betty Lou signed in April 2009, also disinherited Steven.
In September 2009, Donald died at the age of 85. Betty Lou died in September 2014 at the age of 90.
Lawsuit Over Inheritance
After Donald Tikalsky died, Steven learned he’d been disinherited.
On Sept. 1, 2015, Steven filed in Waukesha County Circuit Court a lawsuit against the revocable living trust set up by his parents. Steven made nine claims in the lawsuit; he withdrew six of them after the trust moved for summary judgment.
The circuit court dismissed two of the remaining claims on summary judgment, leaving only the claim for intentional interference with expected inheritance.
After extensive discovery and multiple motions, the circuit court dismissed that claim with prejudice.
Litigation on a separate issue springing from Steven’s lawsuit went all the way to the Wisconsin Supreme Court, which ruled against Steven.
Attorney Fees Dispute
After that decision, the circuit court scheduled a trial on the sole remaining claim. Before the trial, Steven sought to withdraw that claim without prejudice but without attorney fees.
The trust didn’t fight the voluntary withdrawal but did ask for: 1) half of the $1 million in attorney fees it had spent; or 2) attorney fees spent on four motions filed between 2016 and 2018.
The circuit court rejected the trust’s request for half of its total attorney fees but granted its request for attorney fees spent on the four motions, in the amount of $72,795.
The circuit court also ruled that it would retain jurisdiction over the case, regardless of whether Steven decided not to appeal, so that it could rule on any renewed motion by the trust regarding the request for half of its total attorney fees.
Steven challenged the reasonableness of the attorney fee award. The circuit court rejected that challenge; Steven appealed.
No Disposition to Undue Influence
On appeal, Steven argued that the circuit court had erred by dismissing his undue influence claim on summary judgment.
In a per curiam decision, a three-judge panel of the Court of Appeals concluded that Steven had failed to present sufficient evidence as to two of the four elements necessary to prove undue influence: 1) the disposition of a person to exercise undue influence; and 2) the obtaining of a coveted result – a result that showed the influence of person disposed to exert undue influence.
Steven argued that two brief mentions of him in communications by his siblings, as well as the fact his sister Susan urged her father to sue Steven, showed a disposition to undue influence.
In one mention, Steven’s brother James said that he had “always been jealous of Steven’s relationship with Don.”
In the other mention, Steven’s sister Susan apparently said that her parents saw Steven as a “perfect kid.”
But the panel wrote that those two brief mentions of Steven “hardly evidence an intent to do something wrongful, grasping, or overreaching to obtain a share of the estate.”
Regarding Susan’s urging Donald to sue Steven, the panel noted that the statement was made after Donald had, in 2007, drafted trust documents that disinherited Steven.
“Steven has failed to create any sort of evidentiary nexus between those statements and his disinheritance,” the panel wrote.
No Coveted Result
The panel also concluded that Steven had failed to demonstrate a coveted result.
The judges pointed out that under supreme court caselaw, “it is not odd or unnatural to disinherit a child after a significant period of estrangement.”
“The disinheritance in this case occurred years after the inception of the family conflict, and close in time to Donald’s rocky departure from his law firm,” the panel wrote.
Steven practiced law with his father from the mid-1970s until Donald retired in 2007. The panel noted that “[e]ven Donald’s departure from the law firm became contentious.”
Improper Retention of Jurisdiction
The panel concluded that the circuit court had not erred in its award of attorney fees.
However, it concluded that the circuit court’s retention of jurisdiction, in contemplation of a future award of attorney fees, was improper.
The panel pointed out that when a circuit court enters a final order dismissing a case in its entirety and a party appeals, the circuit court’s jurisdiction generally ends, with some limited exceptions.
