Will burned in basement while testator was in kitchen, 13 steps away, was not burned in "testator's presence" under (1) (b) and was not revoked. Court recommends that testators personally revoke wills by defacing and initialling each page. Re Estate of Haugk, 91 W (2d) 196, 280 NW (2d) 684 (1979).
Disposition of estate of decedent killed by beneficiary discussed. In Matter of Estate of Safran, 102 W (2d) 79, 306 NW (2d) 27 (1981).
Under facts of case, property which was prevented by (3) from passing to divorced spouse passes as if divorced spouse failed to survive testator. In Matter of Estate of Graef, 124 W (2d) 25, 368 NW (2d) 633 (1985).
Lost wills: The Wisconsin law. Burrell and Porter, 60 MLR 351.
When will is contractual. 853.13(1)
A contract not to revoke a will can be established only by any of the following:
Provisions of the will itself sufficiently stating the contract.
An express reference in the will to a contract not to revoke the will and evidence proving the terms of the contract.
If the will makes no reference to a contract, clear and convincing evidence apart from the will.
This section applies to a joint will, except if one of the testators has died prior to April 1, 1971, as well as to any other will. There is no presumption that the testators of a joint will have contracted not to revoke it.
History: 1995 a. 225
After the death of one party, the other party to a will based on contract cannot in effect avoid the will by giving away property. Estate of Chayka, 47 W (2d) 102, 176 NW (2d) 561.
The existence of an irrevocable contract does not prevent the making of a later will and its admission to probate; the remedy is an action in equity to enforce the contract. Estate of Schultz, 53 W (2d) 643, 193 NW (2d) 655.
See note to 72.12, citing In Matter of Estate of Jacobs, 92 W (2d) 266, 284 NW (2d) 638 (1979).
Whether clear and convincing evidence of a contract exists under sub. (1) (c) is a fact to be found by the trial court and given deference by an appellate court. Estate of Czerniejewski, 185 W (2d) 892, 619 NW (2d) 702 (Ct. App. 1994).
Joint and mutual wills. Kroncke, 43 WBB, No. 5.
Contracts to make joint or mutual wills. O'Donnell, 55 MLR 103.
Equitable election if will attempts to dispose of property belonging to beneficiary. 853.15(1)
Necessity for election.
Unless the will provides otherwise, if a will gives a bequest or devise to one beneficiary and also clearly purports to give to another beneficiary a property interest which does not pass under the will but belongs to the first beneficiary by right of ownership, survivorship, beneficiary designation, election under s. 861.02 (1)
or otherwise, the first beneficiary must elect either to take under the will and transfer his or her property interest in accordance with the will, or to retain his or her property interest and not take under the will. If the beneficiary elects not to take under the will, unless the will provides otherwise the bequest or devise given him or her under the will is to be assigned by the court to the other beneficiary in lieu of the property interest which does not pass under the will. This section does not require an election if the property interest belongs to the first beneficiary by reason of transfer or beneficiary designation made by the decedent after the execution of the will.
(2) Procedure for election.
If an election is required under sub. (1)
, the following provisions apply:
The court may by order set a time within which the beneficiary is required to file with the court a written election either to take under the will and forego, waive or transfer the beneficiary's property interest in favor of the other person to whom it is given by the will, or to retain such property interest and not take under the will. The time set shall be not earlier than one month after the necessity for such an election and the nature of the interest given to the beneficiary under the will have been determined.
If a written election by the beneficiary to take under the will and transfer the beneficiary's property interest in accordance with the will has not been filed with the court within the time set by order, or if no order setting a time has been entered, then prior to the final judgment, the beneficiary is deemed to have elected not to take under the will.
Except as provided above, participation in the administration by the beneficiary does not constitute an election to take under the will.
Effect of reference to another document. 853.16(1)
A reference in a will executed on or after May 3, 1996, to another document that lists tangible personal property not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the distributees with reasonable certainty and is signed and dated by the decedent.
Another document under sub. (1)
is valid even if it does not exist when the will is executed, even if it is changed after the will is executed and even if it has no significance except for its effect on the disposition of property by the will.
History: 1995 a. 234
Wisconsin's New Personal Property Memorandum Law. Slate. Wis. Law. Oct. 1996.
Effect of will provision changing beneficiary of life insurance or annuity. 853.17(1)
Any provision in a will which purports to name a different beneficiary of a life insurance or annuity contract than the beneficiary properly designated in accordance with the contract with the issuing company, or its bylaws, is ineffective to change the contract beneficiary unless the contract or the company's bylaws authorizes such a change by will.
This section does not prevent the court from requiring the contract beneficiary to elect under s. 853.15
in order to take property under the will; nor does it apply to naming a testamentary trustee as designated by a life insurance policy under s. 701.09
Designation of beneficiary, payee or owner. 853.18(1)(1)
Except as otherwise provided in ch. 766
, no written designation in accordance with the terms of any insurance, annuity or endowment contract, or in any agreement issued or entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof, and no written designation made under a contract, plan, system or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee or owner of any right, title or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing, is subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift or intestacy, even though that designation or assignment is revocable or the rights of that beneficiary, payee, owner or assignee are otherwise subject to defeasance.
This section applies to such designations or assignments made either before or after June 25, 1969, by persons who die on or after that date. This section creates no implication of invalidity as to any designation or assignment, of the nature described in sub. (1)
, made by any person who dies before that date or as to any declaration, agreement or contract for the payment of money or other transfer of property at death not specified under sub. (1)
History: 1983 a. 186
Phrase "statute governing the transfer of property by will" in (1) refers to statutes establishing formalities for execution of valid will. In Matter of Estate of Habelman, 145 W (2d) 228, 426 NW (2d) 363 (Ct. App. 1988).
Advancement in testate estate. 853.19(1)
When gift during life is deducted from will.
If a testator by will makes a provision for a beneficiary and later makes a gift during lifetime to that beneficiary, the gift is not to be deducted from the provision in the will as an advance unless:
The testator by will provides for deduction of the gift; or
The testator by writing clearly states that the gift is an advance, whether or not such writing is contemporaneous with the gift; or
The beneficiary states by writing or in court that the gift was an advance.
(2) Advance when gift lapses.
If the provision in the will fails because of the death of the beneficiary, and issue of that beneficiary take by the terms of a substitutional gift in the will or by reason of s. 853.27
, the provision in the will to which the issue become entitled shall be reduced by the amount of the advance unless the contrary intent is apparent from the will or the writing by the testator evidencing the advance.
The value of a gift established as an advance under sub. (1)
is determined as of the time when the beneficiary comes into possession or enjoyment of the property advanced, or the time of death of the testator if that occurs first.
History: 1993 a. 486
Unintentional failure to provide for issue of testator. 853.25(1)(1)
Children born or adopted after making of the will. 853.25(1)(a)(a)
If a testator fails to provide in the testator's will for any child born or adopted after the making of the will, that child is entitled to receive a share in the estate of the testator equal in value to the share which the child would have received if the testator had died intestate, unless:
The testator left all or substantially all of the testator's estate to the mother of the child;
The testator eliminated all of the testator's children known to the testator to be living at the time of execution of the will from any share under the will;
The testator provided for the subsequently born or adopted child by transfers outside the will and the intent that the transfers be in lieu of a testamentary gift is either shown by statements of the testator or inferred from the amount of the transfers and other circumstances; or
In any other case it appears from the will or evidence outside the will that the omission was intentional.
If a child entitled to a share under this section dies before the testator, and the child leaves issue who survive the testator, the issue who represent the deceased child are entitled to the deceased child's share.
(2) Living issue omitted by mistake.
If clear and convincing evidence proves that by mistake or accident the testator failed to provide in the testator's will for a child living at the time of making of the will, or for the issue of any then deceased child, the child or issue is entitled to receive a share in the estate of the testator equal in value to the share which the child or issue would have received if the testator had died intestate. But failure to mention a child or issue in the will is not in itself evidence of mistake or accident.
(3) Time for presenting demand for relief.
A demand for relief under this section must be presented to the court in writing not later than (a) entry of the final judgment, or (b) 6 months after allowance of the will, whichever first occurs.
(4) From what estate share is to be taken.
Except as provided in sub. (5)
, the court shall in its final judgment assign the share provided by this section:
The balance from each of the beneficiaries under the will in proportion to the value of the estate each would have received under the will as written, unless the obvious intention of the testator in relation to some specific gift or other provision in the will would thereby be defeated, in which case the court may adopt a different apportionment and may exempt a specific gift or other provision.
(5) Discretionary power of court to assign different share.
If in any case under sub. (1)
the court determines that the intestate share is a larger amount than the testator would have wanted to provide for the omitted child or issue of a deceased child, because it exceeds the value of a provision for another child or for issue of a deceased child under the will, or that assignment of the intestate share would unduly disrupt the testamentary scheme, the court may in its final judgment make such provision for the omitted child or issue out of the estate as it deems would best accord with the probable intent of the testator, such as assignment, outright or in trust, of any amount less than the intestate share but approximating the value of the interest of other issue, or modification of the provisions of a testamentary trust for other issue to include the omitted child or issue.
History: 1993 a. 486
Rights of issue of beneficiary dying before testator (lapse). 853.27(1)(1)
Unless a contrary intent is indicated by the will, if provision in the will is made for any relative of the testator and the relative dies before the testator and leaves issue who survive the testator, then the issue as represent the deceased relative are substituted for the deceased relative under the will and take the same interest as the deceased relative would have taken had the deceased relative survived the testator.
For purposes of this section, a provision in the will means:
A gift to an individual whether the individual is dead at the time of the making of the will or dies after the making of the will;
A share in a class gift only if a member of the class dies after the making of the will; or
An appointment by the testator under any power of appointment, unless the issue who would take under this section could not have been appointees under the terms of the power.
History: 1993 a. 486
A bequest to a wife "and to her heirs and assigns forever", where the wife predeceased the testator, held ambiguous where the words were in a residuary clause so that the effect would be intestacy if strictly construed, the draftsman testified that the words were not used in a technical sense and the will acknowledged testator's debt to his wife. Estate of Mangel, 51 W (2d) 55, 186 NW (2d) 276.
A will containing a disinheritance clause and a residuary clause naming a residuary legatee, not related to the testatrix, with no gift over, was subject to the anti-lapse statute as the legacy lapsed when the legatee predeceased the testatrix; hence the lapsed gift passed to the heirs-at-law by intestate succession, not to the children of the deceased named beneficiary. Estate of Connolly, 65 W (2d) 440, 222 NW (2d) 885.
Section 853.27 does not deny equal protection by arbitrarily creating 2 classes of beneficiaries—relatives and nonrelatives—because the classification is entirely reasonable and well founded in public policy. Estate of Connolly, 65 W (2d) 440, 222 NW (2d) 885.
"Relative" within meaning of (1) is one related by blood. In re Estate of Haese, 80 W (2d) 285, 259 NW (2d) 54.
A will is presumed to pass all property which the testator owns at the testator's death and which the testator has power to transmit by will, including property acquired after the execution of the will.
History: 1993 a. 486
Presumption that will passes all of testator's interest in property.
Any gift of property by will is presumed to pass all the estate or interest which the testator could lawfully will in the property unless it clearly appears by the will, interpreted in light of the surrounding circumstances, that the testator intended to pass a less estate or interest.
Where a testatrix in a single dispositive paragraph divided her estate one half to her sister and the other to 2 nieces, who were her only then living full-blood relatives, and was survived by only the one niece of the whole blood and brothers and sisters of the half blood, provision in the will that it was her intention that all of her estate be inherited by her named "kindred of the whole blood, and none shall go to my brothers and sisters of the half blood" did not permit strict application of the rule of disinheritance so as to create an intestacy in favor of the half brothers and sisters because such literal application would defeat the intention of the testatrix which was that her estate be given to her relatives of the whole blood (here her surviving niece) and none to her brothers and sisters of the half blood. (Rule of disinheritance as enunciated in Will of Ziehlke, 230 Wis. 574, and Will of Rosnow, 273 Wis. 438, modified.) Estate of Farber, 57 W (2d) 363, 204 NW (2d) 478.
Gift of securities construed as specific.
Every gift of a stated number of shares or amount of securities is construed to be a specific gift if the testator owned the same or a greater number of shares or amount of the securities at the time of execution of the will, even though the will does not describe the securities more specifically or qualify the description by a possessive pronoun such as "my", unless the will expressly empowers the personal representative to purchase securities to satisfy the bequest. "Securities" is used in this section in the broadest possible sense and includes but is not limited to stocks, bonds and corporate securities of any kind, shares in an investment trust or common trust fund, and bonds or other obligations of the United States, any state, other governmental unit or agency, foreign or domestic.
Nonademption of specific gifts in certain cases. 853.35(1)(1)
Scope of section.
It is the intent of this section to abolish the common law doctrine of ademption by extinction in the situations governed by this section. This section is inapplicable if the intent that the gift fail under the particular circumstances appear in the will, or if the testator during the testator's lifetime gives property to the specific beneficiary with the intent of satisfying the specific gift. Whenever the subject of the specific gift is property only part of which is destroyed, damaged, sold or condemned, the specific gift of any remaining interest in the property owned by the testator at the time of the testator's death is not affected by this section; but this section applies to the part which would have been adeemed under the common law by the destruction, damage, sale or condemnation.
(2) Proceeds of insurance on property.
If insured property which is the subject of a specific gift is destroyed, damaged, lost, stolen or otherwise subject to any casualty compensable by insurance, the specific beneficiary has the right to the following amounts reduced by any amount expended or incurred by the testator in restoration or repair of the property:
Any insurance proceeds paid to the personal representative after death of the testator, with the incidents of the specific gift; and
A general pecuniary legacy equivalent to any insurance proceeds paid to the testator within one year of the testator's death.
If property which is the subject of a specific gift is sold by the testator within 2 years of the testator's death, the specific beneficiary has the right to:
Any balance of the purchase price unpaid at the time of death (including any security interest in the property and interest accruing before death), if part of the estate, with the incidents of the specific gift; and
A general pecuniary legacy equivalent to the amount of the purchase price paid to the testator within one year of the testator's death.
Acceptance of a promissory note of the purchaser or a 3rd party is not considered payment, but payment on the note is payment on the purchase price; and for purposes of this section property is considered sold as of the date when a valid contract of sale is made. Sale by an agent of the testator or by a trustee under a revocable living trust created by the testator, the principal of which is to be paid to the personal representative or estate of the testator on the testator's death, is a sale by the testator for purposes of this section.
If property which is the subject of a specific gift is taken by condemnation prior to the testator's death, the specific beneficiary has the right to:
Any amount of the condemnation award unpaid at the time of death, with the incidents of the specific gift; and