854.07 Failed transfer and residue.

(1) Except as provided in sub. (4) and s. 854.06, if an attempted transfer under a governing instrument fails, the attempted transfer becomes part of the residue of the governing instrument. This subsection does not apply if the attempted transfer is itself a residuary transfer.

(2) Except as provided in sub. (4) and s. 854.06, if the residue of a governing instrument is to be transferred to 2 or more persons, the share of a residuary transferee that fails passes to the other residuary transferees in proportion to the interest of each in the remaining part of the residue.

(3) If a governing instrument other than a will does not effectively dispose of an asset that is governed by the instrument, that asset shall be paid or distributed to the transferor's probate estate.

(4) If the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe the intent.

History: 1997 a. 188; 2005 a. 216.

Under a will leaving “my homestead which I occupy at the time of my death" to a son, the home in which the testator lived when the will is executed should be awarded to the son even though the testator became ill and was confined to a nursing home for a year prior to his death and the home was rented. Estate of Gotthart, 56 Wis. 2d 563, 202 N.W.2d 397 (1972).

The testator's spouse inherited the residue when a purported residuary clause made only specific and general bequests and did not make a dispositive provision for distribution of the residue. To read into a will a gift by implication, it is necessary to first find a positive, disposing intent based on a contingency that did not occur. Then it is possible, if the facts warrant it, to imply the same intent concerning the contingency which did occur but which was not accounted for in the will. In Matter of Estate of McWilliams, 78 Wis. 2d 328, 254 N.W.2d 277 (1977).

NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to the Wisconsin Probate Code.