700.04 Annotation
Where conditional testamentary disposition failed, court found a gift by implication rather than a reversionary interest which would have contravened the testatrix' intent. In re Trust of Pauly, 71 W (2d) 306, 237 NW (2d) 719.
700.05
700.05
Classification of remainders. Remainders are classified as:
700.05(1)
(1) Indefeasibly vested, if the interest is created in favor of one or more ascertained persons in being and is certain to become a present interest at some time in the future;
700.05(2)
(2) Vested subject to open, if the interest is created in favor of a class of persons, one or more of whom are ascertained and in being, and if the interest is certain to become a present interest at some time in the future, but the share of the ascertained remaindermen is subject to diminution by reason of other persons becoming entitled to share as members of the class;
700.05(3)
(3) Vested subject to complete defeasance, if the interest is created in favor of one or more ascertained persons in being and would become a present interest on the expiration of the preceding interests but may end or may be completely defeated as provided by the transferor at, before or after the expiration of the preceding interests;
700.05(4)
(4) Subject to a condition precedent, if the interest is created in favor of one or more unborn or unascertained persons or in favor of one or more presently ascertainable persons upon the occurrence of an uncertain event.
700.05 History
History: 1971 c. 66.
700.06
700.06
Interest for life of another; succession. An interest measured by the life of a person other than the owner of the interest passes on the death of the owner (prior to the death of the person who is the measuring life) as an asset of the owner's estate and is realty or personalty according to the nature of the property subject to the interest.
700.07
700.07
Transferability of future interests. A future interest is transferable during the lifetime of the owner and passes on the owner's death by will or under the law of intestate succession in the same manner as a present interest; but this section does not make an interest transferable if a valid condition or limitation restricts transfer, nor permit an interest to pass at death if the interest ends at death.
700.07 History
History: 1991 a. 316.
700.08
700.08
Estate tail becomes fee simple; effect of gift over after attempted estate tail. The use of language in an instrument appropriate to create a present or future interest in fee tail (such as to a named person "and the heirs of his body" or "and the heirs of her body" or "and his issue" or "and her issue") creates a present or future interest in fee simple; if the same instrument attempts to create a future interest after the interest which is made a fee simple by reason of this section, the future interest is valid.
700.08 History
History: 1993 a. 486.
700.09
700.09
Interest contingent on death without issue. If an instrument transfers an interest expressly contingent upon the death of a person without "heirs of the body", "descendants", "issue", "children" or relatives described by other terms, the interest takes effect only if that person dies not having such a relative living at the time of death, or conceived then and born alive thereafter.
700.09 History
History: 1991 a. 316.
700.10
700.10
Remainder to heirs of owner of life interest; abolition of rule in Shelley's case. If an instrument purports to transfer an interest for life to one person and a remainder to that person's heirs or the heirs of that person's body, a remainder is created in that person's heirs or heirs of that person's body.
700.10 History
History: 1991 a. 316.
700.11
700.11
Meaning of remainder to "heirs" or to "issue". Unless the wording of the instrument clearly expresses a contrary intent, a remainder to the "heirs" of a designated person is construed to mean those persons who would be the designated person's heirs and in the shares provided by
s. 852.01 if the designated person were to die intestate at the time the remainder takes effect in possession or enjoyment; a remainder to the "issue" of a designated person is construed to mean those persons who would inherit property as the designated person's issue under the intestate succession statutes and in the shares provided by
s. 852.01 if the designated person were to die intestate at the time the remainder takes effect in possession or enjoyment.
700.11 History
History: 1991 a. 316.
700.12
700.12
After-born children included in class gift. If an instrument transfers an interest to a group of persons described as a class, such as "issue", "children", "nephews and nieces" or any other class, a person conceived at the time the membership in the class is determined and born alive subsequently is entitled to take as a member of the class if that person otherwise satisfies the conditions for class membership.
700.12 History
History: 1991 a. 316.
700.13
700.13
Remainders presumed not to shorten prior interest; acceleration of remainders. 700.13(1)
(1) If an instrument transfers an interest for life or years and a future interest to take effect on a stated contingency not defeating or avoiding the prior interest transferred, and the stated contingency occurs before the normal termination of the prior interest transferred, the future interest takes effect at the normal termination of the prior interest.
700.13(2)
(2) Unless the instrument of transfer manifests a contrary intent, renunciation or release of an interest for life or years accelerates succeeding interests.
700.14
700.14
Indestructibility of contingent future interests. No future interest is destroyed merely by the termination in any manner of any or all preceding interests before the happening of a contingency to which the future interest is subject.
700.15
700.15
Nominal conditions not enforced. A condition imposed by the transferor is not enforceable if it is or becomes merely nominal and of no actual or substantial benefit to the transferor or other person in whose favor it is to be performed.
700.16
700.16
Perpetuities and suspension of power of alienation. 700.16(1)(a)(a) A future interest or trust is void if it suspends the power of alienation for longer than the permissible period. The permissible period is a life or lives in being plus a period of 30 years.
700.16(1)(b)
(b) If the settlor of a living trust has an unlimited power to revoke, the permissible period is computed from termination of such power.
700.16(1)(c)
(c) If a future interest or trust is created by exercise of a power of appointment, the permissible period is computed from the time the power is exercised if the power is a general power as defined in
s. 702.01 (3) even if the power is exercisable only by will; in the case of other powers the permissible period is computed from the time the power is created but facts at the time the power is exercised are considered in determining whether the power of alienation is suspended beyond a life or lives in being at the time of creation of the power plus 30 years.
700.16(2)
(2) The power of alienation is suspended when there are no persons in being who, alone or in combination with others, can convey an absolute fee in possession of land, or full ownership of personalty.
700.16(3)
(3) There is no suspension of the power of alienation by a trust or by equitable interests under a trust if the trustee has power to sell, either expressed or implied, or if there is an unlimited power to terminate in one or more persons in being.
700.16(4)
(4) This section does not apply to limit any of the following:
700.16(4)(a)
(a) Transfers, outright or in trust, for charitable purposes;
700.16(4)(b)
(b) Transfers to literary or charitable corporations;
700.16(4)(c)
(c) Transfers to any cemetery corporation, society or association;
700.16(4)(d)
(d) Transfers, outright or in trust, to the state society of physicians and surgeons incorporated under the law of this state, when the transfer is for the advancement of medical science;
700.16(5)
(5) The common-law rule against perpetuities is not in force in this state.
700.16 History
History: Sup. Ct. Order, 67 W (2d) 585, 777 (1975);
1983 a. 189 s.
329 (26);
1989 a. 278;
1995 a. 406.
700.17
700.17
Classification and characteristics of certain concurrent interests. 700.17(1)
(1)
Classification of concurrent interests. Interests in property may be owned concurrently by 2 or more persons as joint tenants or as tenants in common. A joint tenancy or tenancy in common established exclusively between spouses after the determination date is classified as provided under
s. 766.60 (4) (b).
700.17(2)
(2) Characteristics of joint tenancy. 700.17(2)(a)(a) Each of 2 or more joint tenants has an equal interest in the whole property for the duration of the tenancy, irrespective of unequal contributions at its creation. On the death of one of 2 joint tenants, the survivor becomes the sole owner; on the death of one of 3 or more joint tenants, the survivors are joint tenants of the entire interest, except that if a survivor disclaims under
s. 701.27 (2) (b) 1., the joint tenancy is severed as of the date of death with respect to the disclaimed interest.
700.17(2)(b)1.1. If a joint tenant unlawfully and intentionally kills another joint tenant of the same property, the joint tenancy is severed so that the interest of the decedent passes as the decedent's property and the killer has no right of survivorship as to that property.
700.17(3)
(3) Characteristics of tenancy in common. Each of 2 or more tenants in common has an undivided interest in the whole property for the duration of the tenancy. There is no right of survivorship incident to a tenancy in common; but a remainder may be created to vest ownership in the survivor of several persons who own as tenants in common other preceding interests (such as a life interest) in the same property.
700.17 Note
NOTE: As to sub. (1), see notes in
1985 Wis. Act 37, marital property trailer bill.
700.17 Annotation
Rental income must be attributed to joint tenants in proportion to ownership. McManus v. Dept. of Revenue, 91 W (2d) 682, 283 NW (2d) 576 (1979).
700.17 Annotation
Concurrent ownership; joint tenancy and tenancy in common. Talsky, 55 MLR 321.
700.18
700.18
Determination of cotenancy generally. Two or more persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are tenants in common, except as otherwise provided in
s. 700.19 or
ch. 766.
700.18 History
History: 1991 a. 301.
700.19
700.19
Creation of joint tenancy. 700.19(1)
(1)
Generally. The creation of a joint tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale. Any of the following constitute an expression of intent to create a joint tenancy: "as joint tenants", "as joint owners", "jointly", "or the survivor", "with right of survivorship" or any similar phrase except a phrase similar to "survivorship marital property".
700.19(2)
(2) Husband and wife. If persons named as owners in a document of title, transferees in an instrument of transfer or buyers in a bill of sale are described in the document, instrument or bill of sale as husband and wife, or are in fact husband and wife, they are joint tenants, unless the intent to create a tenancy in common is expressed in the document, instrument or bill of sale. This subsection applies to property acquired before January 1, 1986, and, if
ch. 766 does not apply when the property is acquired, to property acquired on or after January 1, 1986.
700.19(3)
(3) Comortgagees. If covendors owned realty as joint tenants and a purchase money mortgage names the covendors as mortgagees, the mortgagees are joint tenants, unless the purchase money mortgage expresses an intent that the mortgagees are tenants in common.
700.19(4)
(4) Cofiduciaries. Notwithstanding
s. 700.18 and
subs. (1) to
(3), co-personal representatives and cotrustees hold title to interests in property as joint tenants.
700.19(5)
(5) Change in common law requirements. The common law requirements of unity of title and time for creation of a joint tenancy are abolished.
700.19 Annotation
Nature of cotenancies and their taxation—death and gift. Sheedy, Sullivan, 56 MLR 3.
700.20
700.20
Extent of undivided interests in tenancy in common. The extent of the undivided interests of tenants in common for the duration of the tenancy is determined by the intent expressed in the document of title, instrument of transfer or bill of sale; if no intent is expressed in the document, instrument or bill of sale, tenants in common are presumed to own equal undivided interests for the duration of the tenancy.
700.20 History
History: 1971 c. 66.
700.21
700.21
Covendors in contracts to transfer. 700.21(1)
(1) If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as joint tenants, the purchase price is payable to them as joint tenants, unless the contract expresses a contrary intent. If 2 or more persons are named as covendors in a contract to transfer an interest in property which they own as tenants in common, the purchase price is payable to them according to their interests, unless the contract expresses a contrary intent.
700.21(2)
(2) If 2 or more persons are named as covendors in a contract to transfer an interest in property which is owned by less than all of the covendors, the purchase price is payable to the owner or owners of the interest in property to which the contract relates, unless the contract expresses an intent that the purchase price is payable to the covendors as joint tenants or as tenants in common.
700.21 History
History: 1971 c. 66.
700.215
700.215
Exception for equitable rights of cotenants and third persons. Nothing in
ss. 700.17 to
700.21 prevents an equitable lien arising in favor of one cotenant against another tenant or tenants because of events occurring after the establishment of the cotenancy relationship nor prevents imposition of a constructive trust in favor of a 3rd person in an appropriate case.
700.215 History
History: 1971 c. 66.
700.22
700.22
Exception for bank deposits, checks, government bonds and vehicles. 700.22(1)
(1) Nothing in
ss. 700.17 to
700.21 governs the determination of rights to deposits (including checking accounts or instruments deposited therein or drawn thereon, savings accounts, certificates of deposit, investment shares or any other form of deposit) in banks, building and loan associations, savings banks, savings and loan associations, credit unions or other financial institutions.
700.22(2)
(2) Nothing in
ss. 700.17 to
700.21 applies to United States obligations to the extent they are governed by law of the United States.
700.22 Cross-reference
Cross-reference: See ch.
705 for provisions applicable to multiple party accounts.
700.22 Annotation
The rationale underlying the adoption of the contract theory as applied to joint savings accounts does not hold with respect to joint checking accounts, the very nature of which is such that it is utilized more as a shared wallet than as a shared investment, as is the case with a savings account; hence there is no sound reason for ascribing to the joint checking accounts the attributes of a common-law joint tenancy other than survivorship. No tracing of assets is permissible. Estates of Beisbier, 47 W (2d) 409, 177 NW (2d) 919.
700.23
700.23
Liability among cotenants for rents and profits. 700.23(1)(1) The provisions of this section apply only in the absence of a valid agreement to the contrary between the cotenants. As used in this section, "proportionate share" means a share determined by the number of joint tenants, in the case of a joint tenancy, and the extent of a tenant in common's undivided interest, in the case of a tenancy in common.
700.23(2)
(2) If land belonging to 2 or more cotenants is rented to a 3rd person, any cotenant may recover that cotenant's proportionate share of the net rents collected by another cotenant after deduction of property taxes, maintenance costs and any other proper charges relating to the property.
700.23(3)
(3) If land belonging to such cotenants is occupied by one cotenant and not by another, any cotenant not occupying the premises may recover from the occupying cotenant:
700.23(3)(a)
(a) A proportionate share of the reasonable rental value of the land accruing after written demand for rent if the occupying tenant manifests an intent to occupy the premises to the exclusion of the other cotenant or cotenants;
700.23(3)(b)
(b) A proportionate share of the net profits if the occupying cotenant engages in mining, cutting of timber, removal of sand or gravel, or any similar operation resulting in diminution of the value of the premises. In such a case, the occupying cotenant must render an accounting to the other cotenant, showing all receipts and expenditures, and is entitled to deduct a reasonable amount for the value of services provided by the occupying cotenant; but any other cotenant may in the alternative elect to recover that cotenant's proportionate share of the amount which that cotenant can prove would have been received by licensing a 3rd party to carry on the same operation.
700.23(4)
(4) If one cotenant has leased the premises from another cotenant, upon expiration of the lease it is presumed that the cotenant who has leased the premises from the other cotenant continues to hold over as provided in
s. 704.25, unless that cotenant gives to the other cotenant prior to the expiration of the lease a written notice to the contrary, by one of the methods under
s. 704.21.
700.23 History
History: 1971 c. 66;
1991 a. 316.
700.24
700.24
Death of a joint tenant; effect of liens. A real estate mortgage, a security interest under
ch. 409, or a lien under s.
72.86 (2), 1985 stats., or
s. 71.91 (5) (b),
ch. 49 or
779 on or against the interest of a joint tenant does not defeat the right of survivorship in the event of the death of such joint tenant, but the surviving joint tenant or tenants take the interest such deceased joint tenant could have transferred prior to death subject to such mortgage, security interest or statutory lien.