AB645,33,2119
853.11
(1) (bm) 1. A subsequent will wholly revokes the prior will if the testator
20intended the subsequent will to replace rather than supplement the prior will,
21regardless of whether the subsequent will expressly revokes the prior will.
AB645,33,2522
2. The testator is presumed to have intended a subsequent will to replace,
23rather than supplement, the prior will if the subsequent will completely disposes of
24the testator's estate. If this presumption arises and is not rebutted by clear and
25convincing evidence, the prior will is revoked.
AB645,34,5
13. The testator is presumed to have intended a subsequent will to supplement,
2rather than replace, the prior will if the subsequent will does not completely dispose
3of the testator's estate. If this presumption arises and is not rebutted by clear and
4convincing evidence, the subsequent will revokes the prior will only to the extent of
5any inconsistency.
AB645, s. 136
6Section
136. 853.11 (2) of the statutes is repealed and recreated to read:
AB645,34,97
853.11
(2) Premarital will. (a)
Entitlement of surviving spouse. Subject to par.
8(c), if the testator married the surviving spouse after the testator executed his or her
9will, the surviving spouse is entitled to a share of the probate estate.
AB645,34,1310
(b)
Value of share. The value of the share under par. (a) is the value of the share
11that the surviving spouse would have received had the testator died with an intestate
12estate equal to the value of the property subject to administration less the value of
13all of the following:
AB645,34,1414
1. Administration, funeral and burial expenses.
AB645,34,1515
2. Enforceable claims paid.
AB645,34,1816
3. All devises to or for the benefit of the testator's children who were born before
17the marriage to the surviving spouse and who are not also the children of the
18surviving spouse.
AB645,34,1919
4. All devises to or for the benefit of the issue of a child described in subd. 3.
AB645,34,2120
5. All devises that pass under s. 854.06, 854.07, 854.21 or 854.22 to or for the
21benefit of children described in subd. 3. or issue of those children.
AB645,34,2222
(c)
Exceptions. Paragraph (a) does not apply if any of the following applies:
AB645,34,2423
1. It appears from the will or other evidence that the will was made in
24contemplation of the testator's marriage to the surviving spouse.
AB645,35,3
12. It appears from the will or other evidence that the will is intended to be
2effective notwithstanding any subsequent marriage, or there is sufficient evidence
3that the testator considered revising the will after marriage but decided not to.
AB645,35,74
3. The testator provided for the spouse by transfer outside the will and the
5intent that the transfer be in lieu of a testamentary provision is shown by the
6testator's statements or is reasonably inferred from the amount of the transfer or
7other evidence.
AB645,35,108
4. The testator and the spouse have entered into an agreement that complies
9with ch. 766 and that provides for the spouse or specifies that the spouse is to have
10no rights in the testator's estate.
AB645,35,1111
(d)
Priority and abatement. In satisfying the share provided by this subsection:
AB645,35,1312
1. Amounts received by the surviving spouse under s. 861.02 and devises made
13by will to the surviving spouse are applied first.
AB645,35,1514
2. Devises other than those described in par. (b) 3. to 5. abate as provided under
15s. 854.18.
AB645, s. 137
16Section
137. 853.11 (3) of the statutes is repealed and recreated to read:
AB645,35,1817
853.11
(3) Former spouse. The effect of a transfer under a will to a former
18spouse is governed by s. 854.15.
AB645, s. 138
19Section
138. 853.11 (3m) of the statutes is repealed and recreated to read:
AB645,35,2220
853.11
(3m) Intentional killing of decedent by beneficiary. If a beneficiary
21under a will killed the decedent, the rights of that beneficiary are governed by s.
22854.14.
AB645, s. 139
23Section
139. 853.11 (6) of the statutes is repealed and recreated to read:
AB645,36,424
853.11
(6) Revival of revoked will. (a) If a subsequent will that partly revoked
25a previous will is itself revoked by a revocatory act under sub. (1m), the revoked part
1of the previous will is revived unless it is evident from the circumstances of the
2revocation of the subsequent will or from the testator's contemporary or subsequent
3declarations that the testator did not intend the revoked part of the previous will to
4take effect as executed.
AB645,36,95
(b) If a subsequent will that wholly revoked a previous will is itself revoked by
6a revocatory act under sub. (1m), the previous will remains revoked unless it is
7revived. The previous will is revived if it is evident from the circumstances of the
8revocation of the subsequent will or from the testator's contemporary or subsequent
9declarations that the testator intended the previous will to take effect as executed.
AB645,36,1510
(c) If a subsequent will that wholly or partly revoked a previous will is itself
11revoked by another, later will, the previous will or its revoked part remains revoked,
12unless it or its revoked part is revived. The previous will or its revoked part is revived
13to the extent that it appears from the terms of the later will, or from the testator's
14contemporary or subsequent declarations, that the testator intended the previous
15will to take effect.
AB645,36,1716
(d) In the absence of an original valid will, establishment of the execution and
17validity of the revived will or part is governed by s. 856.17.
AB645, s. 140
18Section
140. 853.13 of the statutes is repealed and recreated to read:
AB645,36,20
19853.13 Contracts. (1) A contract to make a will or devise, not to revoke a will
20or devise or to die intestate may be established only by any of the following:
AB645,36,2121
(a) Provisions of a will stating the material provisions of the contract.
AB645,36,2322
(b) An express reference in a will to a contract and extrinsic evidence proving
23the terms of the contract.
AB645,36,2524
(c) A valid written contract, including a marital property agreement under s.
25766.58 (3) (e).
AB645,37,1
1(d) Clear and convincing extrinsic evidence.
AB645,37,3
2(2) The execution of a joint will or mutual wills does not create a presumption
3of a contract not to revoke the will or wills.
AB645, s. 141
4Section
141. 853.15 (1) of the statutes is renumbered 853.15 (1) (a) and
5amended to read:
AB645,37,106
853.15
(1) (a) Unless the will provides otherwise,
this subsection applies if a
7will gives a
bequest or devise to one beneficiary and also clearly purports to give to
8another beneficiary
a property
interest which that does not pass under the will but
9belongs to the first beneficiary by right of ownership, survivorship, beneficiary
10designation
, election under s. 861.02 (1) or otherwise
.
AB645,37,17
11(b) If the conditions in par. (a) are fulfilled, the first beneficiary must elect
12either to take under the will and transfer his or her property
interest in accordance
13with the will
, or to retain his or her property
interest and not take under the will.
14If the
first beneficiary elects not to take under the will, unless the will provides
15otherwise
the bequest or his or her devise
given him or her under the will
is to shall 16be assigned
by the court to the other beneficiary
in lieu of the property interest which
17does not pass under the will.
AB645,37,20
18(c) This section does not require an election if the property
interest belongs to
19the first beneficiary
by reason because of transfer or beneficiary designation made
20by the decedent after the execution of the will.
AB645, s. 142
21Section
142. 853.16 (title) of the statutes is repealed.
AB645, s. 143
22Section
143. 853.16 (1) of the statutes is renumbered 853.32 (2) (a).
AB645, s. 144
23Section
144. 853.16 (2) of the statutes is renumbered 853.32 (2) (b) and
24amended to read:
AB645,38,4
1853.32
(2) (b) Another document under
sub. (1) par. (a) is valid even if it does
2not exist when the will is executed, even if it is changed after the will is executed and
3even if it has no significance except for its effect on the disposition of property by the
4will.
AB645, s. 145
5Section
145. 853.19 of the statutes is repealed and recreated to read:
AB645,38,7
6853.19 Advancement. The effect of a lifetime gift by the testator on the rights
7of a beneficiary under the will is governed by s. 854.09.
AB645, s. 146
8Section
146. 853.25 (1) of the statutes is repealed and recreated to read:
AB645,38,129
853.25
(1) Children born or adopted after making of the will. (a)
10Applicability. Except as provided in sub. (5), if a will fails to provide for a child of the
11testator born or adopted after execution of the will, the child is entitled to a share of
12the estate unless any of the following applies:
AB645,38,1413
1. It appears from the will or from other evidence that the omission was
14intentional.
AB645,38,1815
2. The testator provided for the omitted child by transfer outside the will and
16the intent that the transfer be in lieu of a testamentary provision is shown by the
17testator's statements or is reasonably inferred from the amount of the transfer or
18other evidence.
AB645,38,2519
(b)
Share if testator had no living child at execution. Except as provided in sub.
20(5), if a will fails to provide for a child of the testator born or adopted after the
21execution of the will and the testator had no child living when he or she executed the
22will, the omitted child receives a share in the estate equal in value to that which the
23child would have received under ch. 852, unless the will devised all or substantially
24all of the estate to or for the benefit of the other parent of the omitted child and that
25other parent survives the testator and is entitled to take under the will.
AB645,39,5
1(c)
Share if testator had living child at execution. Except as provided in sub.
2(5), if a will fails to provide for a child of the testator born or adopted after the
3execution of the will and the testator had one or more children living when he or she
4executed the will and the will devised property to one or more of the then-living
5children, the omitted child is entitled to share in the testator's estate as follows:
AB645,39,76
1. The portion that the omitted child is entitled to share is limited to devises
7made to the testator's then-living children under the will.
AB645,39,118
2. The omitted child is entitled to receive the share of the testator's estate, as
9limited in subd. 1., that the child would have received had the testator included all
10omitted after-born and after-adopted children with the children to whom devises
11were made under the will and had given an equal share of the estate to each child.
AB645,39,1412
3. To the extent feasible, the interest granted an omitted child under this
13section shall be of the same character, whether equitable or legal, present or future,
14as that devised to the testator's then-living children under the will.
AB645,39,1815
4. In satisfying a share provided by this paragraph, devises to the testator's
16children who were living when the will was executed abate ratably. In abating the
17devises of the then-living children, the court shall preserve to the maximum extent
18possible the character of the testamentary plan adopted by the testator.
AB645,39,2219
(d)
Rights of issue. Except as provided in sub. (5), if a child entitled to a share
20under this section dies before the testator, and the child leaves issue who survive the
21testator, the issue who represent the deceased child are entitled to the deceased
22child's share.
AB645, s. 147
23Section
147. 853.25 (2) of the statutes is amended to read:
AB645,40,824
853.25
(2) Living issue omitted by mistake. If Except as provided in sub. (5),
25if clear and convincing evidence proves that
by mistake or accident the testator failed
1to provide in the testator's will for a child living at the time of making of the will, or
2for the issue of any then deceased child,
by mistake or accident, including the
3mistaken belief that the child or issue of a deceased child was dead at the time the
4will was executed, the child or issue is entitled to receive a share in the estate of the
5testator
equal in value to the share which the child or issue would have received if
6the testator had died intestate. But failure, as provided under sub. (1), as if the child
7or issue was born or adopted after the execution of the will. Failure to mention a child
8or issue in the will is not in itself evidence of mistake or accident.
AB645, s. 148
9Section
148. 853.25 (4) of the statutes is amended to read:
AB645,40,1210
853.25
(4) From what estate share is to be taken. Except as provided in sub.
11(5), the court shall in its final judgment assign
the
a share provided
by this section 12under sub. (1) (b) as follows:
AB645,40,1313
(a)
From any First, from intestate property
first;.
AB645,40,2014
(b)
The Any balance from each
of the beneficiaries devise to a beneficiary under
15the will in proportion to the value of the estate each
beneficiary would have received
16under the will as written
, unless. If the obvious intention of the testator
, shown by
17clear and convincing evidence, in relation to some specific gift or other provision in
18the will would
thereby be defeated
, in which case by assignment of the share as
19provided in this paragraph, the court may adopt a different apportionment and may
20exempt a specific
gift devise or other provision.
AB645, s. 149
21Section
149. 853.25 (5) of the statutes is amended to read:
AB645,41,822
853.25
(5) Discretionary power of court to assign different share. If in any
23case under sub. (1) or (2) the court determines that the
intestate share is
in a
larger 24different amount
than or form from what the testator would have wanted to provide
25for the omitted child or issue of a deceased child,
because it exceeds the value of a
1provision for another child or for issue of a deceased child under the will, or that
2assignment of the intestate share would unduly disrupt the testamentary scheme, 3the court may in its final judgment make such provision for the omitted child or issue
4out of the estate as it deems would best accord with the
probable intent of the testator
, 5such as assignment, outright or in trust, of any amount less than the intestate share
6but approximating the value of the interest of other issue, or modification of the
7provisions of a testamentary trust for other issue to include the omitted child or
8issue.
AB645, s. 150
9Section
150. 853.27 of the statutes is repealed and recreated to read:
AB645,41,11
10853.27 Lapse. The rights under a will of a beneficiary who predeceases the
11testator are governed by s. 854.06.
AB645, s. 151
12Section
151. 853.29 of the statutes is amended to read:
AB645,41,16
13853.29 After-acquired property. A will is presumed to pass all property
14which that the testator owns at the testator's death and
which that the testator has
15power to
transmit transfer by will, including property acquired
by the testator after
16the execution of the will
or acquired by the testator's estate.
AB645, s. 152
17Section
152. 853.32 of the statutes is created to read:
AB645,41,20
18853.32 Effect of reference to another document. (1) Incorporation. A
19will may incorporate by reference another writing or document if all of the following
20apply:
AB645,41,2221
(a) The will, either expressly or as construed from extrinsic evidence, manifests
22an intent to incorporate the other writing or document.
AB645,41,2323
(b) The other writing or document was in existence when the will was executed.
AB645,41,2524
(c) The other writing or document is sufficiently described in the will to permit
25identification with reasonable certainty.
AB645,42,1
1(d) The will was executed in compliance with s. 853.03 or 853.05.
AB645,42,2
2(2) Disposition of tangible personal property.
AB645,42,113
(c) If the document described in par. (a) is not located by the personal
4representative, or delivered to the personal representative or circuit court with
5jurisdiction over the matter, within 30 days after the appointment of the personal
6representative, the personal representative may dispose of tangible personal
7property according to the provisions of the will as if no such document exists. If a
8valid document is located after some or all of the tangible personal property has been
9disposed of, the document controls the distribution of the property described in it, but
10the personal representative incurs no liability for the prior distribution or sale of the
11property, as long as the time specified in this paragraph has elapsed.
AB645,42,1312
(d) The duties and liability of a person who has custody of a document described
13in par. (a), or information about such a document, are governed by s. 856.05.
AB645,42,1514
(e) Beneficiaries under a document that is described in par. (a) are not
15interested parties for purposes of s. 879.03.
AB645,42,18
16(3) Transfers to living trusts. The validity and implementation of a will
17provision that purports to transfer or appoint property to a living trust are governed
18by s. 701.08.
AB645, s. 153
19Section
153. 853.325 of the statutes is created to read:
AB645,43,2
20853.325 Effect of reference to acts or events. A will may dispose of
21property by reference to acts or events that have significance apart from their effect
22on the disposition of property under the will and that do not occur solely for the
23purpose of determining the disposition of property under the will. Reference to the
24execution or revocation of another individual's will fulfills the requirements under
1this section. This section applies whether the acts or events occur before or after
2execution of the will or before or after the testator's death.
AB645, s. 154
3Section
154. 853.33 of the statutes is repealed and recreated to read:
AB645,43,5
4853.33 Gift of securities. Section 854.11 governs gifts of securities under a
5will.
AB645, s. 155
6Section
155. 853.35 of the statutes is repealed and recreated to read:
AB645,43,9
7853.35 Nonademption of specific gifts in certain instances. The rights
8of a beneficiary with respect to a specific gift that is destroyed, damaged, sold or
9condemned before the testator's death are governed by s. 854.08.
AB645, s. 156
10Section
156. 853.40 of the statutes is repealed and recreated to read:
AB645,43,12
11853.40 Disclaimer. A person to whom property would otherwise pass under
12a will may disclaim all or part of the property as provided in s. 854.13.
AB645, s. 157
13Section
157. 853.41 of the statutes is created to read:
AB645,43,16
14853.41 Applicability of general transfers at death provisions. Chapter
15854 applies to transfers under wills, including transfers under a Wisconsin basic will
16or basic will with trust.