In re Estate of Persha

1. This appeal arises out of a contest over the will of Nickolas Persha. Ruth Abram, the only beneficiary under the will and the personal representative, sought to have the will admitted to probate. One of Persha's siblings, Mary Gittel, objected on the grounds that Persha lacked testamentary capacity to make a will and the will was the result of Abram's undue influence. The trial court ruled that Persha lacked testamentary capacity, Abram had failed to rebut the presumption of undue influence, and the will should not be admitted to probate, and it ordered Persha's estate to proceed intestate. Subsequently, the court rescinded that portion of its Decision and Order regarding undue influence and ordered that Abram's costs and attorney fees be reimbursed from the estate under Wis. Stat. §§ 879.35 and 879.37 (1999-2000).1 Gittel appeals this order, contending that the court lacked the statutory authority to rescind the portion of its earlier Decision and Order regarding undue influence, and that the trial court's implicit finding that Abram propounded the will in good faith is clearly erroneous. 2. We hold that the trial court had the authority under Wis. Stat. § 806.07(1)(h) to rescind the portion of its Decision and Order regarding undue influence even though that did not change the ultimate order that the estate should proceed intestate. We also hold the trial court had the authority to do so on its own motion as long as both parties had adequate notice.