(concurring). I join the court’s opinion. Unless the beneficiary is convicted of first-degree murder, in which case Will of Wilson, 5 Wis.2d 178, 92 N.W.2d 282 (1958), effects an automatic disqualification, the determination of whether the beneficiary had intent to kill must be made in a civil proceeding. Supra, p. 98.
I concur, however, in the dissent’s interpretation of Hart v. State, 75 Wis.2d 371, 249 N.W.2d 810 (1977), and of sec. 940.06, Stats. 1975.1 A conviction under sec. 940.06, Stats., cannot rest solely on inadvertence; a subjective realization (or sometimes referred to in Hart as subjective intent) is required.2 I do not, however, agree with the dissent that a conviction under sec. 940.06, Stats., results in an automatic disqualification under Will of Wilson. While a conviction of homicide by reckless conduct may in some cases involve facts showing an intent to kill, a conviction under sec. 940.06, although requiring proof of facts showing a subjective realization or intent, does not necessarily always involve an intent to kill as that phrase is used in Will of Wilson. Thus when an individual is convicted under sec. 940.06, Stats., an independent determination that the beneficiary had the disqualifying intent to kill must be made in the civil proceeding. The conviction itself guarantees neither that the defendant had an intent to kill nor that he did not.
While I would retain the disqualification of persons who intend to kill as set forth in Will of Wilson, I would not have the court extend the reach of the rule any further. Any extension is for the legislature, not the court.
The dissent correctly notes that the majority has not withdrawn the language in Hart stating that a subjective realization is required.
Jorgenson v. Chicago & N.W. Ry., 153 Wis. 108, 116, 140 N.W. 1088 (1913).