853.01 Annotation "Disposition to influence" element of 4-factor test of undue influence means willingness to do something wrong or unfair to obtain a share of estate. Mere fact that will benefits alleged influencer does not prove "coveted-result" element of test. Elements of testamentary capacity discussed. In Matter of Estate of Becker, 76 W (2d) 336, 251 NW (2d) 431.
853.01 Annotation Two methods of proving undue influence discussed. In re Estate of Kamesar, 81 W (2d) 151, 259 NW (2d) 733.
853.01 Annotation Undue influence discussed. In re Estate of Taylor, 81 W (2d) 687, 260 NW (2d) 803.
853.01 Annotation Insane delusion as ground for objection to probate of will discussed. In re Estate of Evans, 83 W (2d) 259, 265 NW (2d) 529 (1978).
853.01 Annotation Legal guardianship in and of itself does not prove lack of testamentary capacity. In Matter of Estate of Sorensen, 87 W (2d) 339, 274 NW (2d) 694 (1979).
853.01 Annotation Parent-child relationships as "confidential relationship" discussed. In Matter of Estate of Sensenbrenner, 89 W (2d) 677, 278 NW (2d) 887 (1979).
853.01 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
853.03 853.03 Execution of wills. Every will in order to be validly executed must be in writing and executed with all of the following formalities:
853.03(1) (1) It must be signed by the testator, by the testator with the assistance of another person with the testator's consent or in the testator's name by another person at the testator's direction and in the testator's conscious presence.
853.03(2) (2) It must be signed by 2 or more witnesses, each of whom signed within a reasonable time after witnessing any of the following:
853.03(2)(a) (a) The signing of the will as provided under sub. (1).
853.03(2)(b) (b) The testator's implicit or explicit acknowledgement of the testator's signature on the will, within the conscious presence of each of the witnesses.
853.03(2)(c) (c) The testator's implicit or explicit acknowledgement of the will, within the conscious presence of each of the witnesses.
853.03 History History: 1993 a. 486; 1997 a. 188.
853.03 Annotation The alternate requisite in sub. (1) that if not signed by the testator it be signed by some person in his presence and by his express direction, is not met by simply taking the testator's hand as an inanimate object and making his mark or signature where the testator fails or is unable to in any manner expressly authorize another to sign for him. Estate of Komarr, 46 W (2d) 230, 175 NW (2d) 473.
853.03 Note NOTE: The preceding case was decided prior to the adoption of 1997 Wis. Act 188 which made extensive revisons to this section.
853.04 853.04 Self-proved will.
853.04(1)(1)One-step procedure. A will may be simultaneously executed, attested and made self-proved by the affidavit of the testator and witnesses. The affidavit must be made before an officer authorized to administer oaths under the laws of the state in which execution occurs and must be evidenced by the officer's certificate, under official seal, in substantially the following form:
I, ...., the testator, sign my name to this instrument this .... day of ...., and being first duly sworn, declare to the undersigned authority all of the following:
1. I execute this instrument as my will.
2. I sign this will willingly, or willingly direct another to sign for me.
3. I execute this will as my free and voluntary act for the purposes expressed therein.
4. I am 18 years of age or older, of sound mind and under no constraint or undue influence.
Testator: ....
We, ...., ...., the witnesses, being first duly sworn, sign our names to this instrument and declare to the undersigned authority all of the following:
1. The testator executes this instrument as his or her will.
2. The testator signs it willingly, or willingly directs another to sign for him or her.
3. Each of us, in the conscious presence of the testator, signs this will as a witness.
4. To the best of our knowledge, the testator is 18 years of age or older, of sound mind and under no constraint or undue influence.
Witness: ....
Witness: ....
State of ....
County of ....
Subscribed and sworn to before me by ...., the testator, and by ...., and ...., witnesses, this .... day of ...., .....
(Seal) ....
(Signed): ....
(Official capacity of officer): ....
853.04(2) (2)Two-step procedure. An attested will may be made self-proved at any time after its execution by the affidavit of the testator and witnesses. The affidavit must be made before an officer authorized to administer oaths under the laws of the state in which the affidavit occurs and must be evidenced by the officer's certificate, under official seal, attached or annexed to the will in substantially the following form:
State of ....
County of ....
We, ...., ...., and ...., the testator and the witnesses whose names are signed to the foregoing instrument, being first duly sworn, do declare to the undersigned authority all of the following:
1. The testator executed the instrument as his or her will.
2. The testator signed willingly, or willingly directed another to sign for him or her.
3. The testator executed the will as a free and voluntary act.
4. Each of the witnesses, in the conscious presence of the testator, signed the will as witness.
5. To the best of the knowledge of each witness, the testator was, at the time of execution, 18 years of age or older, of sound mind and under no constraint or undue influence.
Testator: ....
Witness: ....
Witness: ....
Subscribed and sworn to before me by ...., the testator, and by ...., and ...., witnesses, this .... day of ...., .....
(Seal) ....
(Signed): ....
(Official capacity of officer): ....
853.04(3) (3)Effect of affidavit.
853.04(3)(a)(a) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the due execution of the will.
853.04(3)(b) (b) Inclusion in a will of an affidavit in substantially the form under sub. (1) or (2) is conclusive evidence that the will was executed in compliance with s. 853.03.
853.04 Note NOTE: Sub. (1) (form) and (2) (form are shown as renumbered from sub. (1) (a), (b) and (c) and sub. (2) (a) and (b) by the revisor under s. 13.93 (1) (b).
853.04 History History: 1997 a. 188; s. 13.93 (1) (b).
853.05 853.05 Execution of wills outside the state or by nonresidents within this state.
853.05(1) (1) A will is validly executed if it is in writing and any of the following applies:
853.05(1)(a) (a) The will is executed according to s. 853.03.
853.05(1)(b) (b) The will is executed in accordance with the law, at the time of execution or at the time of death, of any of the following:
853.05(1)(b)1. 1. The place where the will was executed.
853.05(1)(b)2. 2. The place where the testator resided, was domiciled or was a national at the time of execution.
853.05(1)(b)3. 3. The place where the testator resided, was domiciled or was a national at the time of death.
853.05(2) (2) Any will under sub. (1) (b) has the same effect as if executed in this state in compliance with s. 853.03.
853.05 History History: 1997 a. 188.
853.07 853.07 Witnesses.
853.07(1)(1) Any person who, at the time of execution of the will, would be competent to testify as a witness in court to the facts relating to execution may act as a witness to the will. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved.
853.07(2) (2)
853.07(2)(a)(a) Subject to pars. (b) and (c), a will is not invalidated because it is signed by an interested witness.
853.07(2)(b) (b) Except as provided in par. (c), any beneficial provisions of the will for a witness or the spouse of a witness are invalid to the extent that the aggregate value of those provisions exceeds what the witness or spouse would have received had the testator died intestate. Valuation is to be made as of testator's death.
853.07(2)(c) (c) Paragraph (b) does not apply if any of the following applies:
853.07(2)(c)1. 1. The will is also signed by 2 disinterested witnesses.
853.07(2)(c)2. 2. There is sufficient evidence that the testator intended the full transfer to take effect.
853.07(3) (3) An attesting witness is interested only if the will gives to the witness or spouse some personal and beneficial interest. The following are not interests which are personal and beneficial:
853.07(3)(a) (a) A provision for employment as executor or trustee or in some other capacity after death of the testator and a provision for compensation at a rate or in an amount not greater than that usual for the services to be performed;
853.07(3)(b) (b) A provision which would have conferred no benefit if the testator had died immediately following execution of the will.
853.07 History History: 1987 a. 403; 1997 a. 188.
853.09 853.09 Deposit of will in circuit court during testator's lifetime.
853.09(1)(1)Deposit of will. Unless provided otherwise by county ordinance, any testator may deposit his or her will with the register in probate of the court of the county where he or she resides. The will shall be sealed in an envelope with the name and address of the testator, and the date of deposit noted thereon. If the will is deposited by a person other than the testator, that fact also shall be noted on the envelope. The size of the envelope may be regulated by the register in probate to provide uniformity and ease of filing. A county board may, by ordinance, provide that wills may not be deposited with the register in probate for the county. Wills deposited with the register in probate prior to the effective date of that ordinance shall be retained by the register in probate as provided under sub. (2).
853.09(2) (2)Duty of register in probate. The register in probate shall issue a receipt for the deposit of the will and shall maintain a registry of all wills deposited. The original will, unless withdrawn under sub. (3) or opened in accordance with s. 856.03 after death of the testator, shall be kept on file for the period provided in SCR chapter 72; thereafter the register may either retain the original will or open the envelope, copy or reproduce the will for confidential record storage purposes by microfilm, optical disk, electronic format or other method of comparable retrievability and destroy the original. If satisfactorily identified, the reproduction is admissible in court for probate or any other purpose the same as the original document. Wills deposited with the county judge under s. 238.15, 1967 stats., shall be transferred to the register in probate and become subject to this section.
853.09(3) (3)Withdrawal. A testator may withdraw the testator's will during the testator's lifetime, but the register in probate shall deliver the will only to the testator personally or to a person duly authorized to withdraw it for the testator, by a writing signed by the testator and 2 witnesses other than the person authorized.
853.09 History History: 1977 c. 449; 1981 c. 146; Sup. Ct. Order, 136 W (2d) xx (1987); 1993 a. 172, 486; 1995 a. 27.
853.09 Annotation The practice of attorneys retaining wills for safekeeping is disapproved. State v. Gulbankian, 54 W (2d) 605, 196 NW (2d) 733.
853.09 Annotation Where will was not withdrawn fraudulently, non-compliance with witnessing requirement of (3) did not invalidate revocation of will. Re Estate of Haugk, 91 W (2d) 196, 280 NW (2d) 684 (1979).
853.11 853.11 Revocation.
853.11(1)(1)Revocation by writing.
853.11(1)(a)(a) A will is revoked in whole or in part by a subsequent will that is executed in compliance with s. 853.03 or 853.05 and that revokes the prior will or a part thereof expressly or by inconsistency.
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This is an archival version of the Wis. Stats. database for 1997. See Are the Statutes on this Website Official?