It is generally true that under Wisconsin law a life estate in real property must
be written to be valid. Specifically, transactions pertaining to land must comply
with 706 et seq. of the Wisconsin statutes, which provides that:
1. Transactions under s. 706.001 (1) shall not be valid unless evidenced by a conveyance
that satisfies all of the following:
(a) Identifies the parties; and
(b) Identifies the land; and
(c) Identifies the interest conveyed, and any material term, condition, reservation,
exception or contingency upon which the interest is to arise, continue or be extinguished,
limited or encumbered; and
(d) Is signed by or on behalf of each of the grantors; and
(e) Is signed by or on behalf of all parties, if a lease or contract to convey; and…
(Wis. Stat. Ann 706.02). Notwithstanding the above, Wisconsin courts have recognized
oral life interests in real property where the grantor has reserved a life estate
even though a deed, absolute on its face, has been delivered to the grantee.
Wisconsin law further provides the remedy of reformation by deed where both parties
agreement; intended that the agreement be included in the written expression of the
agreement; and the oral agreement was not included in the written document because
of mutual mistakes of the parties (Wis. Stat. Ann. 706.04(1)).
Wisconsin also provides broad equitable remedies from the strict statute of frauds
requirement. Wis. Stat. Ann. 706.04 provides that an oral agreement once proved may
be enforced if substantial possession or use of the premises has been permitted after
termination of a prior right (Wis. Stat. Ann. 706.04(3)(a)). Similarly, an oral agreement
may be enforced if a party partially or substantially performs their part of the bargain
in the contract. To find otherwise, would allow the other party to be unjustly enriched
as a result of the first party's action (Wis. Stat. Ann. 706.04(2).
Moreover, recordation is not necessary to make a transfer of an interest in real property
valid (Wis. Stat. Ann. 706.08). Generally, a conveyance of land which is otherwise
valid passes title from the grantor to the grantee although it has not been recorded.
Wisconsin, as in many other states, provides for an exception to this general rule,
namely, the title of one who holds an unrecorded deed is void as against a person
who, in good faith and for a valuable consideration, purchases the same property and
records the conveyance first (Wis. Stat. Ann. 706.08). However, until that occurs
the unrecorded deed is valid.
As the above discussion indicates, a “hard and fast” rule concerning the validity
of oral life estates in real property is virtually impossible to formulate. Although
a life estate must generally be written to be valid, there are enough exceptions to
that rule to suggest that a case by case analysis is necessary to determine the validity
of oral life estates in real property in Wisconsin.