Background
Florence Ball established a revocable trust in 2008, amending it most recently in June 2019 with documents drafted by attorney Maureen O’Leary’s law firm. The trust provided that Ball’s nephew Dominic Clark would receive Ball’s Brown Deer, Wisconsin residence upon her death if the property remained in the trust; otherwise, Clark would receive $1,000. The trust named O’Leary as successor trustee upon Ball’s “death, resignation, or inability to act,” and separately authorized O’Leary’s firm to serve as Administrative Trustee with power to sell real property. The trust defined “unable to act” to require either a court order of incapacity or written certifications from two licensed physicians meeting specified criteria.
In August 2021, Ball suffered serious injuries in a fall. O’Leary thereafter began acting as Successor Trustee based on a healthcare power-of-attorney incapacity statement signed by a psychologist and a physician — a document the parties concede did not satisfy the trust’s definition of “unable to act” and addressed only health care decision-making. By late 2022, without speaking to Ball beforehand, O’Leary listed and sold Ball’s Brown Deer home. Ball — who was upset and confused upon learning of the sale — and Clark were unable to reach O’Leary to protest. O’Leary signed the trustee’s deed and all sale documents solely in her capacity as Successor Trustee. Ball died approximately six weeks after closing. Clark was sent a $1,000 check, which he declined to cash.
The Trust litigants petitioned the circuit court for confirmation that O’Leary had authority to sell as either Successor Trustee or Administrative Trustee, and that Clark’s beneficial interest was satisfied by the $1,000 payment. Clark cross-petitioned, arguing O’Leary was never validly appointed Successor Trustee and that her signing the deed solely in that capacity rendered the conveyance invalid. The circuit court sided with the Trust, finding that while O’Leary was not the Successor Trustee, her authority as Administrative Trustee saved the transaction — analogizing her erroneous designation to a scrivener’s error. Clark appealed.
The Court’s Holding
The Wisconsin Court of Appeals reversed, holding that O’Leary was never validly appointed Successor Trustee and therefore lacked authority to convey the Brown Deer residence in that capacity. The court construed the trust as a whole and concluded that “inability to act” and “unable to act” were intended to carry the same meaning. Key to this analysis was the trust’s use of the word “also” in the immediately following sentence — providing that a different trustee would be selected if O’Leary was “also unable or unwilling to act” — which signals Ball intended the two phrases to be equivalent. Because the August 2021 incapacity statement did not satisfy the trust’s defined requirements (two licensed-physician certifications with specific findings, or a court order), the successor trustee provision was never triggered.
The court further rejected the circuit court’s theory that O’Leary’s Administrative Trustee authority could validate the sale. Under Wis. Stat. § 706.03(1m), a conveyance executed by an agent is ineffective against the principal unless the agent was expressly authorized and identified as such in the conveyance. O’Leary signed all sale documents as Successor Trustee — a role she did not lawfully occupy — and not as Administrative Trustee. The court held this was not a scrivener’s error correctable by a court, but rather an intentional representation of an authority O’Leary did not possess. Because the equitable-relief circumstances of Wis. Stat. § 706.04 were not present, the conveyance was invalid.
The court reversed the grant of summary judgment to the Trust litigants and remanded with instructions to enter summary judgment in Clark’s favor and to reconsider both parties’ requests for attorney’s fees and costs under Wis. Stat. § 701.1004(1) in light of the new outcome.
Key Takeaways
- A trust’s defined standard for incapacity governs successor-trustee succession: a healthcare power-of-attorney incapacity statement that does not meet the trust’s explicit physician-certification requirements cannot trigger the successor trustee provision.
- When a trust uses closely parallel phrases — here, “inability to act” and “unable to act” — courts will read the document as a whole to determine whether the settlor intended them to carry the same meaning, and textual signals such as the word “also” can be decisive.
- Under Wisconsin’s real-property conveyance statute, a deed signed by someone acting in an unauthorized capacity cannot be salvaged after the fact by pointing to a separate, valid authority the signer also held but did not invoke; the authorized role must be identified in the conveyance itself.
- Designating the wrong authority on a deed is not a scrivener’s error where the designation reflects an intentional — if mistaken — claim of authority, rather than a minor typographical or transcription mistake.
Why It Matters
This decision is a cautionary tale for successor trustees and the attorneys who draft trust instruments. It underscores that trust-succession triggers must be satisfied precisely as written: a trustee who begins acting before the defined conditions are met risks invalidating every transaction taken in that purported capacity, regardless of good intentions or the practical reasonableness of the belief that the grantor was incapacitated. Drafters should ensure that incapacity definitions are consistent across related trust provisions and that successor trustees are counseled to obtain proper documentation before assuming authority.
The ruling also reinforces Wisconsin’s strict approach to real-property conveyances by agents or representatives. Attorneys facilitating trust real estate transactions should confirm not only that the acting trustee holds valid authority, but that the conveyance documents correctly identify the specific capacity in which the trustee is acting. A mismatch between the authority invoked on the deed and the authority actually possessed — even where another valid authority exists — can void the transaction and expose the trustee to liability for breach of fiduciary duty.