863.21 Construction of will, notice. Notice of hearing upon a petition for the construction of a will shall be given under s. 879.05. If a petition for final judgment contains a request for construction of a will, the notice of hearing on such petition shall include, or be accompanied by, specific notice of the request for construction, the reasons therefor and a copy of the petition or the part thereof requesting construction.

History: 1975 c. 331.

When the proposed final decree uses language different from that appearing in the will or construes the will in the sense of ascertaining the meaning of the testator rather than following express, clear instructions, a record of the reasons for the construction should be made, a special notice of the proposed construction of the will should be given to the parties interested, and a copy of the petition for construction should accompany the notice. Estate of MacLean, 47 Wis. 2d 396, 177 N.W.2d 874 (1970).

When a will mistakenly assumed that the homestead was in joint tenancy when it was solely owned by the testator, the homestead did not pass by intestacy, but fell into the residue. Estate of Sneeberger, 54 Wis. 2d 657, 196 N.W.2d 662 (1972).

Courts may not apply the doctrine of probable intent, which would allow a court to receive extrinsic evidence, irrespective of the presence or absence of an ambiguity, to ascertain the likely intention of the testator. Estate of Connolly, 65 Wis. 2d 440, 222 N.W.2d 885 (1974).

Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.