(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
A general pecuniary legacy equivalent to the amount of an award paid to the testator within one year of the testator's death.
In the event of an appeal in a condemnation proceeding, the award is for purposes of this section limited to the amount established on the appeal. Acceptance of an agreed price or a jurisdictional offer is a sale within the meaning of sub. (3)
(5) Sale by guardian or conservator of incompetent.
If property which is the subject of a specific gift is sold by a guardian or conservator of the testator or a condemnation award or insurance proceeds are paid to a guardian or conservator, the specific beneficiary has the right to a general pecuniary legacy equivalent to the proceeds of the sale or the condemnation award as defined in sub. (4)
or the insurance proceeds, reduced by any amount expended or incurred in restoration or repair of the property. This provision does not apply if testator subsequent to the sale or award or receipt of insurance proceeds is adjudicated competent and survives such adjudication for a period of one year; but in such event sale by a guardian or conservator within 2 years of testator's death is a sale by the testator within the meaning of sub. (3)
If securities are specifically willed to a beneficiary, and subsequent to execution of the will, other securities in the same or another entity are distributed to the testator by reason of the testator's ownership of the specifically bequeathed securities and as a result of a partial liquidation, stock dividend, stock split, merger, consolidation, reorganization, recapitalization, redemption, exchange, or any other similar transaction, and if such other securities are part of testator's estate at death, the specific gift is deemed to include the additional or substituted securities. "Securities" has the same meaning as in s. 853.33
(7) Reduction of recovery by reason of expenses and taxes.
Throughout this section the amount the specific beneficiary receives is reduced by any expenses of the sale or of collection of proceeds of insurance, sale, or condemnation award and by any amount by which the income tax of the decedent or the decedent's estate is increased by reason of items covered by this section. Expenses include legal fees paid or incurred.
History: 1993 a. 486
Disclaimer of transfers by will, intestacy or appointment. 853.40(1)(a)
"Beneficiary under a will" includes a beneficiary of a trust or any other interest created by a will.
A person who is an heir, person succeeding to a disclaimed intestate interest, beneficiary under a will, person succeeding to a disclaimed interest created by will, donee of a power created by will, appointee under a power exercised by will or taker in default under a power created by will or a guardian of any person identified in this paragraph if that guardian is qualified to disclaim and if that guardian disclaims for the guardian's ward may disclaim any property or interest in property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.
Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by will or by the exercise of a power may not be made if partial disclaimer is expressly prohibited by the will or by the instrument exercising the power.
The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all interested persons if the personal representative or special administrator has not taken any action which would bar the right to disclaim under sub. (7) (a)
and if the right to disclaim is not otherwise barred under sub. (7) (b)
Declare the disclaimer and the extent of the disclaimer;
Notwithstanding par. (a)
, any disclaimer which meets the requirements of section 2518
of the internal revenue code, or any other provisions of federal law, constitutes an effective disclaimer under this section.
Disclaiming a present interest.
An instrument disclaiming a present interest shall be executed and delivered not later than 9 months after the death of the deceased transferor of property or the deceased donee of a power, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just.
Disclaiming a future interest.
An instrument disclaiming a future interest shall be executed and delivered not later than 9 months after the event that determines that the taker of the property or interest is finally ascertained and his or her interest indefeasibly fixed, except that, for cause shown, the period may be extended by a court of competent jurisdiction, either within or after the 9-month period, for such additional time as the court deems just.
Future right to income or profits.
Notwithstanding pars. (a)
, an instrument disclaiming the future right to receive mandatory distributions of income or profits from any source may be executed and delivered at any time.
Persons under 21.
Notwithstanding pars. (a)
, a person under 21 years of age may disclaim at any time not later than 9 months after the day on which the person attains 21 years of age.
Interests arising by disclaimer.
Notwithstanding pars. (a)
, a person whose interest in property arises by disclaimer, or by default of exercise of a power created by will, may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered or the date of death of the donee of the power, as the case may be.
(5) Delivery and filing of disclaimer. 853.40(5)(a)(a)
In addition to any requirements imposed by the creating instrument, the instrument of disclaimer is effective only if, within the time specified under sub. (4)
, it is delivered to and received by:
The personal representative or special administrator of the deceased transferor of the property; or
Delivery to trustee.
If the trustee of any trust to which the interest or power relates does not receive the instrument of disclaimer under par. (a)
, a copy shall also be delivered to the trustee.
A copy of the instrument of disclaimer shall be filed in the probate court having jurisdiction.
Failure to deliver or file.
Failure to deliver a copy of the instrument of disclaimer to the trustee under par. (b)
, or to file a copy in the probate court under par. (c)
, within the time specified under sub. (4)
, does not affect the validity of any disclaimer.
If real property or an interest in real property is disclaimed, a copy of the instrument of disclaimer may be recorded in the office of the register of deeds of the county in which the real estate is situated.
Property not vested.
The property or interest disclaimed under this section shall be deemed not to have been vested in, created in or transferred to the disclaimant.
Unless the deceased transferor of the property or deceased donee of the power has otherwise provided, the property or interest disclaimed devolves as if the disclaimant had predeceased the deceased transferor of the property, or, if the disclaimant is an appointee under a power exercised by will or a taker in default under a power created by will, as if the disclaimant had predeceased the donee of the power. A disclaimer relates back for all purposes to the date of death of the deceased transferor of the property or the deceased donee of the power, except that a disclaimer of the future right to receive mandatory distributions of income or profits relates to the period stated in the disclaimer.
Unless the instrument creating the future interest manifests a contrary intent, a future interest to take effect in possession or enjoyment after the termination of the interest which is disclaimed takes effect as if the disclaimant had predeceased the deceased transferor of the property or the deceased donee of the power.