1997 Wisconsin Act 188

(b) Except as provided in par. (c), any beneficial provisions of the will for a witness or the spouse of the a witness are invalid to the extent that such provisions in the aggregate exceed in value 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.

188,131m Section 131m. 853.07 (2) (c) of the statutes is created to read:

853.07 (2) (c) Paragraph (b) does not apply if any of the following applies:

1. The will is also signed by 2 disinterested witnesses.

2. There is sufficient evidence that the testator intended the full transfer to take effect.

188,133 Section 133 . 853.11 (1) (title) of the statutes is amended to read:

853.11 (1) (title) Subsequent Revocation by writing or physical act.

188,134 Section 134 . 853.11 (1) (intro.) and (a) of the statutes are consolidated, renumbered 853.11 (1) (a) and amended to read:

853.11 (1) (a) A will is revoked in whole or in part by: (a) A a subsequent will, codicil or other instrument which that is executed in compliance with s. 853.03 or 853.05 and which that revokes the prior will or a part thereof expressly or by inconsistency; or.

188,135 Section 135 . 853.11 (1) (b) of the statutes is renumbered 853.11 (1m) and amended to read:

853.11 (1m) (title) Revocation by physical act. Burning A will is revoked in whole or in part by burning, tearing, canceling or, obliterating or destroying the will, or part, with the intent to revoke, by the testator or by some person in the testator's conscious presence and by the testator's direction.

188,136 Section 136 . 853.11 (1) (bm) of the statutes is created to read:

853.11 (1) (bm) 1. A subsequent will wholly revokes the prior will if the testator intended the subsequent will to replace rather than supplement the prior will, regardless of whether the subsequent will expressly revokes the prior will.

2. The testator is presumed to have intended a subsequent will to replace, rather than supplement, the prior will if the subsequent will completely disposes of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the prior will is revoked.

3. The testator is presumed to have intended a subsequent will to supplement, rather than replace, the prior will if the subsequent will does not completely dispose of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the prior will only to the extent of any inconsistency.

188,137 Section 137 . 853.11 (2) of the statutes is repealed and recreated to read:

853.11 (2) Premarital will. (a) Entitlement of surviving spouse. Subject to par. (c), if the testator married the surviving spouse after the testator executed his or her will, the surviving spouse is entitled to a share of the probate estate.

(b) Value of share. The value of the share under par. (a) is the value of the share that the surviving spouse would have received had the testator died with an intestate estate equal to the value of the net estate of the decedent less the value of all of the following:

1. All devises to or for the benefit of the testator's children who were born before the marriage to the surviving spouse and who are not also the children of the surviving spouse.

2. All devises to or for the benefit of the issue of a child described in subd. 1.

3. All devises that pass under s. 854.06, 854.07, 854.21 or 854.22 to or for the benefit of children described in subd. 1. or issue of those children.

(c) Exceptions. Paragraph (a) does not apply if any of the following applies:

1. It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse.

2. It appears from the will or other evidence that the will is intended to be effective notwithstanding any subsequent marriage, or there is sufficient evidence that the testator considered revising the will after marriage but decided not to.

3. The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

4. The testator and the spouse have entered into an agreement that complies with ch. 766 and that provides for the spouse or specifies that the spouse is to have no rights in the testator's estate.

(d) Priority and abatement. In satisfying the share provided by this subsection:

1. Amounts received by the surviving spouse under s. 861.02 and devises made by will to the surviving spouse are applied first.

2. Devises other than those described in par. (b) 1. to 3. abate as provided under s. 854.18.

188,138 Section 138 . 853.11 (3) of the statutes is repealed and recreated to read:

853.11 (3) Former spouse. The effect of a transfer under a will to a former spouse is governed by s. 854.15.

188,139 Section 139 . 853.11 (3m) of the statutes is repealed and recreated to read:

853.11 (3m) Intentional killing of decedent by beneficiary. If a beneficiary under a will killed the decedent, the rights of that beneficiary are governed by s. 854.14.

188,140 Section 140 . 853.11 (6) of the statutes is repealed and recreated to read:

853.11 (6) Revival of revoked will. (a) If a subsequent will that partly revoked a previous will is itself revoked by a revocatory act under sub. (1m), the revoked part of the previous will is revived. This paragraph does not apply if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part of the previous will to take effect as executed.

(b) If a subsequent will that wholly revoked a previous will is itself revoked by a revocatory act under sub. (1m), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.

(c) If a subsequent will that wholly or partly revoked a previous will is itself revoked by another, later will, the previous will or its revoked part remains revoked, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent that it appears from the terms of the later will, or from the testator's contemporary or subsequent declarations, that the testator intended the previous will to take effect.

(d) In the absence of an original valid will, establishment of the execution and validity of the revived will or part is governed by s. 856.17.

188,141 Section 141 . 853.13 of the statutes is repealed and recreated to read:

853.13 Contracts. (1) A contract to make a will or devise, not to revoke a will or devise or to die intestate may be established only by any of the following:

(a) Provisions of a will stating the material provisions of the contract.

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

(c) A valid written contract, including a marital property agreement under s. 766.58 (3) (e).

(d) Clear and convincing extrinsic evidence.

(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

188,142 Section 142 . 853.15 (1) of the statutes is renumbered 853.15 (1) (a) and amended to read:

853.15 (1) (a) Unless the will provides otherwise, this subsection applies if a will gives a bequest or devise to one beneficiary and also clearly purports to give to another beneficiary a property interest which that 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 .

(b) If the conditions in par. (a) are fulfilled, 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 first beneficiary elects not to take under the will, unless the will provides otherwise the bequest or his or her devise given him or her under the will is to shall be assigned by the court to the other beneficiary in lieu of the property interest which does not pass under the will.

(c) This section does not require an election if the property interest belongs to the first beneficiary by reason because of transfer or beneficiary designation made by the decedent after the execution of the will.

188,143 Section 143 . 853.16 (title) of the statutes is repealed.

188,144 Section 144 . 853.16 (1) of the statutes is renumbered 853.32 (2) (a).

188,145 Section 145 . 853.16 (2) of the statutes is renumbered 853.32 (2) (b) and amended to read:

853.32 (2) (b) Another document under sub. (1) par. (a) 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.

188,146 Section 146 . 853.19 of the statutes is repealed and recreated to read:

853.19 Advancement. The effect of a lifetime gift by the testator on the rights of a beneficiary under the will is governed by s. 854.09.

188,147 Section 147 . 853.25 (1) of the statutes is repealed and recreated to read:

853.25 (1) Children born or adopted after making of the will. (a) Applicability. Except as provided in sub. (5), if a will fails to provide for a child of the testator born or adopted after execution of the will, the child is entitled to a share of the estate unless any of the following applies:

1. It appears from the will or from other evidence that the omission was intentional.

2. The testator provided for the omitted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

(b) Share if testator had no living child at execution. Except as provided in sub. (5), if a will fails to provide for a child of the testator born or adopted after the execution of the will and the testator had no child living when he or she executed the will, the omitted child receives a share in the estate equal in value to that which the child would have received under ch. 852. This paragraph does not apply if the will devised all or substantially all of the estate to or for the benefit of the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.

(c) Share if testator had living child at execution. Except as provided in sub. (5), if a will fails to provide for a child of the testator born or adopted after the execution of the will and the testator had one or more children living when he or she executed the will and the will devised property to one or more of the then-living children, the omitted child is entitled to share in the testator's estate as follows:

1. The portion that the omitted child is entitled to share is limited to devises made to the testator's then-living children under the will.

2. The omitted child is entitled to receive the share of the testator's estate, as limited in subd. 1., that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.

3. To the extent feasible, the interest granted an omitted child under this section shall be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will.

4. In satisfying a share provided by this paragraph, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

(d) Rights of issue. Except as provided in sub. (5), 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.

188,148 Section 148 . 853.25 (2) of the statutes is amended to read:

853.25 (2) Living issue omitted by mistake. If Except as provided in sub. (5), 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, by mistake or accident, including the mistaken belief that the child or issue of a deceased child was dead at the time the will was executed, 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, as provided under sub. (1), as if the child or issue was born or adopted after the execution of the will. Failure to mention a child or issue in the will is not in itself evidence of mistake or accident.

188,149 Section 149 . 853.25 (4) of the statutes is amended to read:

853.25 (4) From what estate share is to be taken. Except as provided in sub. (5), the court shall in its final judgment assign the a share provided by this section under sub. (1) (b) as follows:

(a) From any First, from intestate property first;.

(b) The Any balance from each of the beneficiaries devise to a beneficiary under the will in proportion to the value of the estate each beneficiary would have received under the will as written, unless. If the obvious intention of the testator, shown by clear and convincing evidence, in relation to some specific gift or other provision in the will would thereby be defeated, in which case by assignment of the share as provided in this paragraph, the court may adopt a different apportionment and may exempt a specific gift devise or other provision.

188,150 Section 150 . 853.25 (5) of the statutes is amended to read:

853.25 (5) Discretionary power of court to assign different share. If in any case under sub. (1) or (2) the court determines that the intestate share is in a larger different amount than or form from what 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.

188,151 Section 151 . 853.27 of the statutes is repealed and recreated to read:

853.27 Lapse. The rights under a will of a beneficiary who predeceases the testator are governed by s. 854.06.

188,152 Section 152 . 853.29 of the statutes is amended to read:

853.29 After-acquired property. A will is presumed to pass all property which that the testator owns at the testator's death and which that the testator has power to transmit transfer by will, including property acquired by the testator after the execution of the will or acquired by the testator's estate.

188,153 Section 153 . 853.32 of the statutes is created to read:

853.32 Effect of reference to another document. (1) Incorporation. A will may incorporate by reference another writing or document if all of the following apply:

(a) The will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document.

(b) The other writing or document was in existence when the will was executed.

(c) The other writing or document is sufficiently described in the will to permit identification with reasonable certainty.

(d) The will was executed in compliance with s. 853.03 or 853.05.

(2) Disposition of tangible personal property.

(c) If the document described in par. (a) is not located by the personal representative, or delivered to the personal representative or circuit court with jurisdiction over the matter, within 30 days after the appointment of the personal representative, the personal representative may dispose of tangible personal property according to the provisions of the will as if no such document exists. If a valid document is located after some or all of the tangible personal property has been disposed of, the document controls the distribution of the property described in it, but the personal representative incurs no liability for the prior distribution or sale of the property, as long as the time specified in this paragraph has elapsed.

(d) The duties and liability of a person who has custody of a document described in par. (a), or information about such a document, are governed by s. 856.05.

(e) Beneficiaries under a document that is described in par. (a) are not interested parties for purposes of s. 879.03.

(3) Transfers to living trusts. The validity and implementation of a will provision that purports to transfer or appoint property to a living trust are governed by s. 701.08.