879.59 Compromises.

(1) Between claimants; parties. The court may authorize personal representatives and trustees to adjust by compromise any controversy that may arise between different claimants to the estate or property in their hands to which agreement the personal representatives or trustees and all other parties in being who claim an interest in the estate and whose interests are affected by the proposed compromise shall be parties in person or by guardian as hereinafter provided.

(2) Between testate and intestate distributees; parties. The court also may authorize the person named to act as personal representative in one or more instruments purporting to be the last will and testament of a decedent, or the petitioners for administration with the will or wills annexed, to adjust by compromise any controversy that may arise between the persons claiming as devisees or legatees under the will or wills and the persons entitled to or claiming the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, to which agreement or compromise the persons named to act as personal representatives or the petitioners for administration with will annexed, those claiming as devisees or legatees and those claiming the estate as intestate shall be parties, provided that persons named to act as personal representatives in any instrument who have renounced or shall renounce the right to act as personal representative and any person whose interest in the estate is unaffected by the proposed compromise shall not be required to be parties to the compromise.

(3) Parties subject to guardianship. Where a person subject to guardianship is a necessary party to a compromise under this section the person shall be represented in the proceedings by the person's guardian or by a special guardian appointed by the court, who shall in the name and on behalf of the party the guardian represents make all proper instruments necessary to carry into effect any compromise sanctioned by the court.

(4) Persons unknown or not in being. If it appears to the satisfaction of the court that the interests of persons unknown or the future contingent interests of persons not in being are or may be affected by the compromise, the court shall appoint some suitable person to represent those interests in the compromise and to make all proper instruments necessary to carry into effect any compromise sanctioned by the court. If by the terms of any compromise made under this section money or property is directed to be set apart or held for the benefit of or to represent the interest of persons subject to guardianship or persons unknown or unborn, the same may be deposited in any trust company, or any state or national bank within this state, authorized to exercise trust powers, or with a special administrator, and shall remain subject to the order of the court.

(5) Court approval required. An agreement of compromise made in writing under this section, if found by the court to be just and reasonable in its effects upon the interests in the estate or property of persons subject to guardianship, unknown persons, or the future contingent interests of persons not in being, is valid and binding upon such interests as well as upon the interests of adult persons of sound mind.

(6) Procedure. An application for the approval of a compromise under this section shall be made by verified petition, which shall set forth the provisions of any instrument or documents by virtue of which any claim is made to the property or estate in controversy and all facts relating to the claims of the various parties to the controversy and the possible contingent interests of persons not in being and all facts which make it proper or necessary that the proposed compromise be approved by the court. The court may entertain an application prior to the execution of the proposed compromise by all the parties required to execute it and may permit the execution by the necessary parties to be completed after the inception of the proceedings for approval thereof if the proposed compromise has been approved by the estate representatives described in subs. (1) and (2). The court shall inquire into the circumstances and make such order or decree as justice requires.

History: 1973 c. 90; 1993 a. 486; 2001 a. 102.

Cross-reference: See s. 859.31 which provides for compromise of creditor's claims against the estate.

An alleged agreement of compromise will not be enforced if items are disputed and it is not agreed to in writing. Estate of McKillip, 53 Wis. 2d 202, 191 N.W.2d 856 (1971).

This section cannot be construed to require that all rights under a will be established and all claims be adjudicated before a compromise of claims is allowed, for that interpretation would not only narrow the area of controversy, eliminate the incentive to compromise, and destroy the purpose of avoiding the costs and risks of litigation, but ignore the right of executors to compromise controversies involving “persons claiming as devisees or legatees" and “persons entitled to or claiming the estate of the deceased" as heirs at law. Estate of Trojan, 53 Wis. 2d 293, 193 N.W.2d 8 (1971).

A guardian ad litem can execute a compromise agreement of his ward's claim in a will contest case when there was no general guardian. Estate of Trojan, 53 Wis. 2d 293, 193 N.W.2d 8 (1971).

The court had no authority to approve a stipulation under sub. (1) without the trustee's approval. In Matter of Estate of McCoy, 118 Wis. 2d 128, 345 N.W.2d 519 (Ct. App. 1984).