AB645-ASA1,32,129
2. The testator is presumed to have intended a subsequent will to replace,
10rather than supplement, the prior will if the subsequent will completely disposes of
11the testator's estate. If this presumption arises and is not rebutted by clear and
12convincing evidence, the prior will is revoked.
AB645-ASA1,32,1713
3. The testator is presumed to have intended a subsequent will to supplement,
14rather than replace, the prior will if the subsequent will does not completely dispose
15of the testator's estate. If this presumption arises and is not rebutted by clear and
16convincing evidence, the subsequent will revokes the prior will only to the extent of
17any inconsistency.
AB645-ASA1, s. 137
18Section
137. 853.11 (2) of the statutes is repealed and recreated to read:
AB645-ASA1,32,2119
853.11
(2) Premarital will. (a)
Entitlement of surviving spouse. Subject to par.
20(c), if the testator married the surviving spouse after the testator executed his or her
21will, the surviving spouse is entitled to a share of the probate estate.
AB645-ASA1,32,2522
(b)
Value of share. The value of the share under par. (a) is the value of the share
23that the surviving spouse would have received had the testator died with an intestate
24estate equal to the value of the net estate of the decedent less the value of all of the
25following:
AB645-ASA1,33,3
11. All devises to or for the benefit of the testator's children who were born before
2the marriage to the surviving spouse and who are not also the children of the
3surviving spouse.
AB645-ASA1,33,44
2. All devises to or for the benefit of the issue of a child described in subd. 1.
AB645-ASA1,33,65
3. All devises that pass under s. 854.06, 854.07, 854.21 or 854.22 to or for the
6benefit of children described in subd. 1. or issue of those children.
AB645-ASA1,33,77
(c)
Exceptions. Paragraph (a) does not apply if any of the following applies:
AB645-ASA1,33,98
1. It appears from the will or other evidence that the will was made in
9contemplation of the testator's marriage to the surviving spouse.
AB645-ASA1,33,1210
2. It appears from the will or other evidence that the will is intended to be
11effective notwithstanding any subsequent marriage, or there is sufficient evidence
12that the testator considered revising the will after marriage but decided not to.
AB645-ASA1,33,1613
3. The testator provided for the spouse by transfer outside the will and the
14intent that the transfer be in lieu of a testamentary provision is shown by the
15testator's statements or is reasonably inferred from the amount of the transfer or
16other evidence.
AB645-ASA1,33,1917
4. The testator and the spouse have entered into an agreement that complies
18with ch. 766 and that provides for the spouse or specifies that the spouse is to have
19no rights in the testator's estate.
AB645-ASA1,33,2020
(d)
Priority and abatement. In satisfying the share provided by this subsection:
AB645-ASA1,33,2221
1. Amounts received by the surviving spouse under s. 861.02 and devises made
22by will to the surviving spouse are applied first.
AB645-ASA1,33,2423
2. Devises other than those described in par. (b) 1. to 3. abate as provided under
24s. 854.18.
AB645-ASA1, s. 138
25Section
138. 853.11 (3) of the statutes is repealed and recreated to read:
AB645-ASA1,34,2
1853.11
(3) Former spouse. The effect of a transfer under a will to a former
2spouse is governed by s. 854.15.
AB645-ASA1, s. 139
3Section
139. 853.11 (3m) of the statutes is repealed and recreated to read:
AB645-ASA1,34,64
853.11
(3m) Intentional killing of decedent by beneficiary. If a beneficiary
5under a will killed the decedent, the rights of that beneficiary are governed by s.
6854.14.
AB645-ASA1, s. 140
7Section
140. 853.11 (6) of the statutes is repealed and recreated to read:
AB645-ASA1,34,138
853.11
(6) Revival of revoked will. (a) If a subsequent will that partly revoked
9a previous will is itself revoked by a revocatory act under sub. (1m), the revoked part
10of the previous will is revived. This paragraph does not apply if it is evident from the
11circumstances of the revocation of the subsequent will or from the testator's
12contemporary or subsequent declarations that the testator did not intend the
13revoked part of the previous will to take effect as executed.
AB645-ASA1,34,1814
(b) If a subsequent will that wholly revoked a previous will is itself revoked by
15a revocatory act under sub. (1m), the previous will remains revoked unless it is
16revived. The previous will is revived if it is evident from the circumstances of the
17revocation of the subsequent will or from the testator's contemporary or subsequent
18declarations that the testator intended the previous will to take effect as executed.
AB645-ASA1,34,2419
(c) If a subsequent will that wholly or partly revoked a previous will is itself
20revoked by another, later will, the previous will or its revoked part remains revoked,
21unless it or its revoked part is revived. The previous will or its revoked part is revived
22to the extent that it appears from the terms of the later will, or from the testator's
23contemporary or subsequent declarations, that the testator intended the previous
24will to take effect.
AB645-ASA1,35,2
1(d) In the absence of an original valid will, establishment of the execution and
2validity of the revived will or part is governed by s. 856.17.
AB645-ASA1, s. 141
3Section
141. 853.13 of the statutes is repealed and recreated to read:
AB645-ASA1,35,5
4853.13 Contracts. (1) A contract to make a will or devise, not to revoke a will
5or devise or to die intestate may be established only by any of the following:
AB645-ASA1,35,66
(a) Provisions of a will stating the material provisions of the contract.
AB645-ASA1,35,87
(b) An express reference in a will to a contract and extrinsic evidence proving
8the terms of the contract.
AB645-ASA1,35,109
(c) A valid written contract, including a marital property agreement under s.
10766.58 (3) (e).
AB645-ASA1,35,1111
(d) Clear and convincing extrinsic evidence.
AB645-ASA1,35,13
12(2) The execution of a joint will or mutual wills does not create a presumption
13of a contract not to revoke the will or wills.
AB645-ASA1, s. 142
14Section
142. 853.15 (1) of the statutes is renumbered 853.15 (1) (a) and
15amended to read:
AB645-ASA1,35,2016
853.15
(1) (a) Unless the will provides otherwise,
this subsection applies if a
17will gives a
bequest or devise to one beneficiary and also clearly purports to give to
18another beneficiary
a property
interest which that does not pass under the will but
19belongs to the first beneficiary by right of ownership, survivorship, beneficiary
20designation
, election under s. 861.02 (1) or otherwise
.
AB645-ASA1,36,2
21(b) If the conditions in par. (a) are fulfilled, the first beneficiary must elect
22either to take under the will and transfer his or her property
interest in accordance
23with the will
, or to retain his or her property
interest and not take under the will.
24If the
first beneficiary elects not to take under the will, unless the will provides
25otherwise
the bequest or his or her devise
given him or her under the will
is to shall
1be assigned
by the court to the other beneficiary
in lieu of the property interest which
2does not pass under the will.
AB645-ASA1,36,5
3(c) This section does not require an election if the property
interest belongs to
4the first beneficiary
by reason because of transfer or beneficiary designation made
5by the decedent after the execution of the will.
AB645-ASA1, s. 145
8Section
145. 853.16 (2) of the statutes is renumbered 853.32 (2) (b) and
9amended to read:
AB645-ASA1,36,1310
853.32
(2) (b) Another document under
sub. (1) par. (a) is valid even if it does
11not exist when the will is executed, even if it is changed after the will is executed and
12even if it has no significance except for its effect on the disposition of property by the
13will.
AB645-ASA1, s. 146
14Section
146. 853.19 of the statutes is repealed and recreated to read:
AB645-ASA1,36,16
15853.19 Advancement. The effect of a lifetime gift by the testator on the rights
16of a beneficiary under the will is governed by s. 854.09.
AB645-ASA1, s. 147
17Section
147. 853.25 (1) of the statutes is repealed and recreated to read:
AB645-ASA1,36,2118
853.25
(1) Children born or adopted after making of the will. (a)
19Applicability. Except as provided in sub. (5), if a will fails to provide for a child of the
20testator born or adopted after execution of the will, the child is entitled to a share of
21the estate unless any of the following applies:
AB645-ASA1,36,2322
1. It appears from the will or from other evidence that the omission was
23intentional.
AB645-ASA1,37,224
2. The testator provided for the omitted child by transfer outside the will and
25the intent that the transfer be in lieu of a testamentary provision is shown by the
1testator's statements or is reasonably inferred from the amount of the transfer or
2other evidence.
AB645-ASA1,37,103
(b)
Share if testator had no living child at execution. Except as provided in sub.
4(5), if a will fails to provide for a child of the testator born or adopted after the
5execution of the will and the testator had no child living when he or she executed the
6will, the omitted child receives a share in the estate equal in value to that which the
7child would have received under ch. 852. This paragraph does not apply if the will
8devised all or substantially all of the estate to or for the benefit of the other parent
9of the omitted child and that other parent survives the testator and is entitled to take
10under the will.
AB645-ASA1,37,1511
(c)
Share if testator had living child at execution. Except as provided in sub.
12(5), if a will fails to provide for a child of the testator born or adopted after the
13execution of the will and the testator had one or more children living when he or she
14executed the will and the will devised property to one or more of the then-living
15children, the omitted child is entitled to share in the testator's estate as follows:
AB645-ASA1,37,1716
1. The portion that the omitted child is entitled to share is limited to devises
17made to the testator's then-living children under the will.
AB645-ASA1,37,2118
2. The omitted child is entitled to receive the share of the testator's estate, as
19limited in subd. 1., that the child would have received had the testator included all
20omitted after-born and after-adopted children with the children to whom devises
21were made under the will and had given an equal share of the estate to each child.
AB645-ASA1,37,2422
3. To the extent feasible, the interest granted an omitted child under this
23section shall be of the same character, whether equitable or legal, present or future,
24as that devised to the testator's then-living children under the will.
AB645-ASA1,38,4
14. In satisfying a share provided by this paragraph, devises to the testator's
2children who were living when the will was executed abate ratably. In abating the
3devises of the then-living children, the court shall preserve to the maximum extent
4possible the character of the testamentary plan adopted by the testator.
AB645-ASA1,38,85
(d)
Rights of issue. Except as provided in sub. (5), if a child entitled to a share
6under this section dies before the testator, and the child leaves issue who survive the
7testator, the issue who represent the deceased child are entitled to the deceased
8child's share.
AB645-ASA1,38,1910
853.25
(2) Living issue omitted by mistake. If Except as provided in sub. (5),
11if clear and convincing evidence proves that
by mistake or accident the testator failed
12to provide in the testator's will for a child living at the time of making of the will, or
13for the issue of any then deceased child,
by mistake or accident, including the
14mistaken belief that the child or issue of a deceased child was dead at the time the
15will was executed, the child or issue is entitled to receive a share in the estate of the
16testator
equal in value to the share which the child or issue would have received if
17the testator had died intestate. But failure, as provided under sub. (1), as if the child
18or issue was born or adopted after the execution of the will. Failure to mention a child
19or issue in the will is not in itself evidence of mistake or accident.
AB645-ASA1,38,2321
853.25
(4) From what estate share is to be taken. Except as provided in sub.
22(5), the court shall in its final judgment assign
the
a share provided
by this section 23under sub. (1) (b) as follows:
AB645-ASA1,38,2424
(a)
From any First, from intestate property
first;.
AB645-ASA1,39,7
1(b)
The Any balance from each
of the beneficiaries devise to a beneficiary under
2the will in proportion to the value of the estate each
beneficiary would have received
3under the will as written
, unless. If the
obvious intention of the testator
, shown by
4clear and convincing evidence, in relation to some specific gift or other provision in
5the will would
thereby be defeated
, in which case by assignment of the share as
6provided in this paragraph, the court may adopt a different apportionment and may
7exempt a specific
gift devise or other provision.
AB645-ASA1,39,209
853.25
(5) Discretionary power of court to assign different share. If in any
10case under sub. (1) or (2) the court determines that the
intestate share is
in a
larger 11different amount
than or form from what the testator would have wanted to provide
12for the omitted child or issue of a deceased child,
because it exceeds the value of a
13provision for another child or for issue of a deceased child under the will, or that
14assignment of the intestate share would unduly disrupt the testamentary scheme, 15the court may in its final judgment make such provision for the omitted child or issue
16out of the estate as it deems would best accord with the
probable intent of the testator
, 17such as assignment, outright or in trust, of any amount less than the intestate share
18but approximating the value of the interest of other issue, or modification of the
19provisions of a testamentary trust for other issue to include the omitted child or
20issue.
AB645-ASA1, s. 151
21Section
151. 853.27 of the statutes is repealed and recreated to read:
AB645-ASA1,39,23
22853.27 Lapse. The rights under a will of a beneficiary who predeceases the
23testator are governed by s. 854.06.
AB645-ASA1,40,4
1853.29 After-acquired property. A will is presumed to pass all property
2which that the testator owns at the testator's death and
which that the testator has
3power to
transmit transfer by will, including property acquired
by the testator after
4the execution of the will
or acquired by the testator's estate.
AB645-ASA1,40,8
6853.32 Effect of reference to another document. (1) Incorporation. A
7will may incorporate by reference another writing or document if all of the following
8apply:
AB645-ASA1,40,109
(a) The will, either expressly or as construed from extrinsic evidence, manifests
10an intent to incorporate the other writing or document.
AB645-ASA1,40,1111
(b) The other writing or document was in existence when the will was executed.
AB645-ASA1,40,1312
(c) The other writing or document is sufficiently described in the will to permit
13identification with reasonable certainty.
AB645-ASA1,40,1414
(d) The will was executed in compliance with s. 853.03 or 853.05.
AB645-ASA1,40,15
15(2) Disposition of tangible personal property.
AB645-ASA1,40,2416
(c) If the document described in par. (a) is not located by the personal
17representative, or delivered to the personal representative or circuit court with
18jurisdiction over the matter, within 30 days after the appointment of the personal
19representative, the personal representative may dispose of tangible personal
20property according to the provisions of the will as if no such document exists. If a
21valid document is located after some or all of the tangible personal property has been
22disposed of, the document controls the distribution of the property described in it, but
23the personal representative incurs no liability for the prior distribution or sale of the
24property, as long as the time specified in this paragraph has elapsed.
AB645-ASA1,41,2
1(d) The duties and liability of a person who has custody of a document described
2in par. (a), or information about such a document, are governed by s. 856.05.
AB645-ASA1,41,43
(e) Beneficiaries under a document that is described in par. (a) are not
4interested parties for purposes of s. 879.03.
AB645-ASA1,41,7
5(3) Transfers to living trusts. The validity and implementation of a will
6provision that purports to transfer or appoint property to a living trust are governed
7by s. 701.08.
AB645-ASA1,41,15
9853.325 Effect of reference to acts or events. A will may dispose of
10property by reference to acts or events that have significance apart from their effect
11on the disposition of property under the will and that do not occur solely for the
12purpose of determining the disposition of property under the will. Reference to the
13execution or revocation of another individual's will fulfills the requirements under
14this section. This section applies whether the acts or events occur before or after
15execution of the will or before or after the testator's death.
AB645-ASA1, s. 155
16Section
155. 853.33 of the statutes is repealed and recreated to read:
AB645-ASA1,41,18
17853.33 Gift of securities. Section 854.11 governs gifts of securities under a
18will.
AB645-ASA1, s. 156
19Section
156. 853.35 of the statutes is repealed and recreated to read:
AB645-ASA1,41,22
20853.35 Nonademption of specific gifts in certain instances. The rights
21of a beneficiary with respect to a specific gift that is destroyed, damaged, sold or
22condemned before the testator's death are governed by s. 854.08.
AB645-ASA1, s. 157
23Section
157. 853.40 of the statutes is repealed and recreated to read:
AB645-ASA1,41,25
24853.40 Disclaimer. A person to whom property would otherwise pass under
25a will may disclaim all or part of the property as provided in s. 854.13.
AB645-ASA1,42,4
2853.41 Applicability of general transfers at death provisions. Chapter
3854 applies to transfers under wills, including transfers under a Wisconsin basic will
4or basic will with trust.
AB645-ASA1, s. 159
5Section
159. Subchapter II (title) of chapter 853 [precedes 853.50] of the
6statutes is created to read:
AB645-ASA1,42,98
Subchapter II
9
Wisconsin basic wills