(1) REAL PARTY IN INTEREST. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
803.01.Parties plaintiff and defendant; capacity.
Ch. 803: Parties · Last amended 2009 · Last verified July 15, 2026
In one sentenceSection 803.01 protects a lawsuit from dismissal for being filed in the wrong name by giving time to ratify or substitute the real party in interest, lets representatives like guardians and trustees sue in their own name, and sets out when a guardian ad litem must be appointed for a minor or incompetent person.
Full Text of Section 803.01
(2) REPRESENTATIVES. A personal representative, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party’s name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner’s name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.
(3) MINORS OR INDIVIDUALS ALLEGED OR ADJUDICATED INCOMPETENT. (a) Appearance by guardian or guardian ad litem. If a party to an action or proceeding is a minor, or if a party is adjudicated incompetent or alleged to be incompetent, the party shall appear by an attorney, by the guardian of the estate of the party who may appear by attorney, or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases in which the minor or individual alleged to be incompetent has no guardian of the estate, in which the guardian fails to appear and act on behalf of the ward or individual adjudicated incompetent, or in which the interest of the minor or individual adjudicated incompetent is adverse to that of the guardian. Except as provided in s. 807.10, if the guardian does appear and act and the interests of the guardian are not adverse to the minor or individual adjudicated incompetent, a guardian ad litem may not be appointed. Except as provided in s. 879.23 (4), if the interests of the minor or individual alleged to be or adjudicated incompetent are represented by an attorney of record, the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem. (b) Guardian ad litem. 1. The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a circuit court commissioner of the county in actions to establish paternity that are before the circuit court commissioner. 2. When the plaintiff is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the plaintiff’s application or upon the state’s application under s. 767.407 (1) (c); or if the plaintiff is under that age or is adjudicated incompetent or alleged to be incompetent, upon application of the plaintiff’s guardian or of a relative or friend or upon application of the state under s. 767.407 (1) (c). If the application is made by a relative, a friend, or the state, notice thereof must first be given to the guardian if the plaintiff has one in this state; if the plaintiff has none, then to the person with whom the minor or individual adjudicated incompetent resides or who has the minor or individual adjudicated incompetent in custody. 3. When the defendant is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the defendant’s application made within 20 days after the service of the summons or other original process; if the defendant is under that age or neglects to so apply or is adjudicated incompetent or alleged to be incompetent, then upon the court’s own motion or upon the application of any other party or any relative or friend or the defendant’s guardian upon such notice of the application as the court directs or approves. 4. If the appointment, for a plaintiff or a defendant, is after the commencement of the action, it shall be upon motion entitled in the action. If the appointment is for a plaintiff and is made before the action is begun, the petition for appointment shall be entitled in the name of the action proposed to be brought by the minor or individual adjudicated incompetent or alleged to be incompetent, and the appointment may be made before the summons is served. Upon the filing of a petition for appointment before summons, the clerk may impose the fee required for the commencement of an action, but in that event no additional commencement fee may be imposed when the summons is filed. 5. The motion or petition under subd. 4. shall state facts showing the need and authority for the appointment. The hearing on the motion or petition under subd. 4., if made by a minor or an individual adjudicated incompetent or alleged to be incompetent for the minor’s or individual’s guardian ad litem, may be held without notice and the appointment made by order. If the motion or petition is made for a minor or an individual adjudicated incompetent or alleged to be incompetent who is an adverse party, the hearing shall be on notice. 6. If a compromise or a settlement of an action or proceeding to which an unrepresented minor or individual adjudicated incompetent or alleged to be incompetent is a party is proposed, a guardian ad litem shall be appointed, upon petition in a special proceeding, to protect the interest of the minor or individual even though commencement of an action is not proposed. Any compromise or settlement shall be subject to s. 807.10. (c) Procedure for unrepresented person. 1. If at any time prior to the entry of judgment or final order, the court finds that either a minor, or a person believed by the court to be mentally incompetent to have charge of his or her affairs, has not been represented in the action or proceeding as provided in par. (a), there shall be no further proceedings until a guardian ad litem is appointed. In making such appointment, the court shall fix a reasonable time within which the guardian ad litem may move to vacate or strike any order entered or action taken during the period when a guardian ad litem was required; and as to all matters to which objection is not made, the guardian ad litem and the ward shall be bound. Any such motion by a guardian ad litem shall be granted as a matter of right. 2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or an individual adjudicated or alleged to be incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of: a. The minor or individual adjudicated or alleged to be incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or b. The personal representative of the minor or individual adjudicated or alleged to be incompetent at any time prior to the expiration of one year after the death of the minor or individual.
Plain-English Summary
No Wisconsin action gets dismissed just because it was not brought in the real party in interest’s name until a reasonable time has been given, after an objection, for that party to ratify the case, join it, or be substituted in; once that happens, the case is treated as if it had been commenced in the real party’s name from the start. A range of representatives, including a personal representative, guardian, bailee, trustee of an express trust, someone who contracted in their own name for another’s benefit, or a party a statute authorizes, may sue in their own name without joining the person the recovery ultimately benefits, and a partner asserting a partnership claim may sue alone as long as the pleading notes it is a partnership claim.
Minors and people who are alleged or adjudicated incompetent must appear through an attorney, a guardian of the estate, or a guardian ad litem. A guardian ad litem is required whenever there is no guardian of the estate, the guardian will not appear and act, or the guardian’s interests conflict with the ward’s, though an attorney of record already representing the minor or incompetent person is generally appointed guardian ad litem instead, absent good cause shown on the record.
The section spells out who applies for that appointment and where: the circuit court where the action is or will be pending, with a circuit court commissioner handling paternity actions. A minor plaintiff 14 or older, or a competent adult, can apply directly; for a younger minor or an incompetent party, the application can come from a guardian, relative, friend, or the state. If the appointment happens before the action begins, the petition is titled in the name of the proposed action, and the appointment can precede service of the summons. Finally, if a court later discovers that a minor or incompetent party went through the case unrepresented, all further proceedings stop until a guardian ad litem is appointed, and a judgment entered without proper representation can be vacated on motion, within one year after the disability is removed for the person themselves, or within one year after death for their personal representative.
Frequently Asked Questions
Can my Wisconsin case be dismissed because I sued in the wrong party’s name?
Not immediately. Section 803.01(1) requires the court to allow a reasonable time after objection for ratification, joinder, or substitution of the real party in interest before dismissing on that ground.
Can a trustee sue in their own name instead of naming the trust beneficiary?
Yes. A trustee of an express trust, along with personal representatives, guardians, bailees, and statutorily authorized parties, may sue in their own name without joining the person for whose benefit the action is brought.
When is a guardian ad litem required for a minor party in Wisconsin?
When the minor has no guardian of the estate, when the guardian fails to appear and act on the minor’s behalf, or when the guardian’s interests are adverse to the minor’s.
Can a minor apply for their own guardian ad litem?
A minor plaintiff 14 years of age or older may apply themselves; for a younger minor, the guardian, a relative, a friend, or the state may apply instead.
What happens to a judgment entered against a minor who was never properly represented?
Section 803.01(3)(c) lets the minor move to vacate the judgment within one year after the disability is removed, or lets the personal representative do so within one year after the minor’s death.
Amendment History
History: Sup. Ct. Order, 67 Wis. 2d 585, 638 (1975); 1975 c. 218; 1977 c. 299, 449; 1981 c. 317; 1993 a. 481; 1997 a. 35; 2001 a. 61, 102; 2005 a. 387; 2005 a. 443 s. 265; 2009 a. 276.
Source & verification. Section text and official notes are
reproduced verbatim from the Wisconsin Statutes, published by the
Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026.
· Official source
Also known as: real party in interest wisconsinguardian ad litem appointment wisconsinsuing on behalf of a minor wisconsincapacity to sue and be sued wisconsinvacate judgment unrepresented minor wisconsin