Probate Mediation is Binding, Wis. Court Rules

Wisconsin case law summary by Attorney Richard Clem: probate.

Estate of Thomas B. Jackowski: Thomas Agnello v. Albert Jackowski. WI probate

Thomas Agnello lived with Thomas B. Jackowski for many years prior to Jackowski's death. When Jackowski died without a will, the case found its way to the probate court of Milwaukee County, Wisconsin. Agnello maintained that he was Jackowski's biological son and an heir to the estate. This claim was contested by Albert Jackowski, the brother of Thomas. The trial judge sent the case to mediation, and the parties ultimately came to an agreement in the probate case and the companion case. The mediation agreement was signed by Agnello and his lawyer. Albert, however, didn't sign the agreement. Instead, it was signed by Albert's lawyer on his behalf.

Ten months later, Agnello hired a new lawyer and went back to court asking to have the mediation agreement modified. At this time, he also requested DNA tests. The trial court denied this motion. The trial court acknowledged that Agnello suffered from a mental illness, but pointed out that it was a personality disorder that didn't affect his cognitive abilities. Also, the trial court noted that the issue of competency had never been brought up previously, and wasn't raised until a year after the mediation agreement was signed.

Dissatisfied with this ruling, Agnello appealed to the Wisconsin Court of Appeals. He made two arguments. First of all, he pointed out that the personal representative of the Jackowski estate had previously represented Agnello in other litigation, and that this constituted a conflict of interest. Also, he argued that he lacked sufficient capacity to enter into the mediation agreement. He argued that because of his developmental disability, he was uncertain as to the role of the two attorneys present: His existing attorney, and the personal representative, who had been his lawyer in the past. He didn't understand the documents he signed and was not competent to sign them.

The Court of Appeals first rejected the conflict of interest argument. In particular, Agnello did not cite any specific legal authority showing that an agreement was invalid under these circumstances. The Court called this an undeveloped argument that was not supported by legal authority, and refused to consider it further.

As to the argument about incompetence, the Court of Appeals first noted that the case had been open for over two years before this issue was brought up, and noted that there was not enough evidence for Agnello to meet the burden of proof. Therefore, the Court of Appeals agreed that the mediation agreement was binding, and affirmed the lower court.

No. 2013AP335 (Wis. Ct. App. Feb. 18, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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