853.61 Mandatory clauses; basic will with trust.
853.62 Date of execution of will.
Ch. 853 Cross-reference
Cross-reference: See definitions in ch.
851.
853.01
853.01
Capacity to make or revoke a will. Any person of sound mind 18 years of age or older may make and revoke a will.
853.01 Annotation
The clause "in equal shares to the then living issue of donor's three daughter-beneficiaries in this trust, and/or the then living issue of any deceased issue of donor's three daughter-beneficiaries, by right of representation" requires distribution per capita among his grandchildren and by representation among their children. In re Bowler Trust, 56 W (2d) 171, 201 NW (2d) 573.
853.01 Annotation
Under a will leaving "my homestead which I occupy at the time of my death" to a son, the home in which testator lived when the will is executed should be awarded to the son even though testator became ill and was confined to a nursing home for a year prior to his death and the home was rented. Estate of Gotthart, 56 W (2d) 563, 202 NW (2d) 397.
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).
853.03
853.03
Execution of wills. Every will in order to be validly executed must be in writing and executed with the following formalities:
853.03(1)
(1) It must be signed by the testator, or in the testator's name by one of the witnesses or some other person at the testator's express direction and in the testator's presence, such a proxy signing either to take place or to be acknowledged by the testator in the presence of the witnesses; and
853.03(2)
(2) It must be signed by 2 or more witnesses in the presence of the testator and in the presence of each other.
853.03 History
History: 1993 a. 486.
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. (Will of Wilcox, 215 W 341, overruled.) Estate of Komarr, 46 W (2d) 230, 175 NW (2d) 473.
853.03 Annotation
See note to 895.045, citing Auric v. Continental Cas. Co. 111 W (2d) 507, 331 NW (2d) 325 (1983).
853.05
853.05
Execution of wills outside the state or by nonresidents within this state. A will is validly executed if it is in writing, executed according to
s. 853.03 or if it is in writing and executed in accordance with either of the following: (a) the law of the place where the will is executed; or (b) the law of the place where the testator is domiciled at the time of execution of the will. Any such will has the same effect as if executed in this state in compliance with
s. 853.03.
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) A will is not invalidated because it is signed by an interested witness; but, unless the will is also signed by 2 disinterested witnesses, any beneficial provisions of the will for a witness or the spouse of the witness are invalid to the extent that such provisions in the aggregate exceed in value 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(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.
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(1)(1)
Subsequent writing or physical act. A will is revoked in whole or in part by:
853.11(1)(a)
(a) A subsequent will, codicil or other instrument which is executed in compliance with
s. 853.03 or
853.05 and which revokes the prior will or a part thereof expressly or by inconsistency; or
853.11(1)(b)
(b) Burning, tearing, canceling or obliterating the will or part, with the intent to revoke, by the testator or by some person in the testator's presence and by the testator's direction.
853.11(2)
(2) Subsequent marriage. A will is revoked by the subsequent marriage of the testator if the testator is survived by the testator's spouse, unless:
853.11(2)(a)
(a) The will indicates an intent that it not be revoked by subsequent marriage or was drafted under circumstances indicating that it was in contemplation of the marriage or makes provision for issue of the decedent; or
853.11(2)(b)
(b) Testator and the spouse have entered into a contract before or after marriage, which complies with
ch. 766 and which makes provision for the spouse or provides that the spouse is to have no rights in the estate of the testator.
853.11(3)
(3) Annulment or divorce. Any provision in a will in favor of the testator's spouse is revoked by an annulment of the marriage to such spouse or by an absolute divorce.
853.11(3m)
(3m) Intentional killing of decedent by beneficiary. 853.11(3m)(a)(a) Except as provided under
par. (am), if any beneficiary under a will has unlawfully and intentionally killed the decedent, the property that the killer would have taken passes as if the killer had predeceased the decedent unless a court decides that, under the factual situation created by the killing, the decedent's wishes would best be carried out by means of another disposition of the decedent's property.
853.11(3m)(am)
(am) A testator may provide in the will, by a specific provision which includes reference to
par. (a), that
par. (a) does not apply with respect to a beneficiary of the will.
853.11(4)
(4) Other methods of revocation. A will is revoked only as provided in this section.
853.11(5)
(5) Dependent relative revocation. Except as modified by
sub. (6) this section is not intended to change in any manner the doctrine of dependent relative revocation.
853.11(6)
(6) Revival. When a will, codicil or part thereof has been revoked by a subsequent will, codicil or other instrument under
sub. (1) (a), the later revocation of the revoking instrument by act under
sub. (1) (b) revives the prior will or codicil or part thereof:
853.11(6)(a)(a) if there is clear and convincing evidence that the testator intended to revive the prior will, codicil or part; or (b) if the revoking instrument is a codicil which revoked only a part of the will by inconsistency and not expressly, and the evidence is insufficient to prove that the testator intended no revival. Proof of testator's statements at or after the act of revocation is admissible to establish intent. A will, codicil or part cannot be revived under this subsection unless the original will or codicil is produced in court.
853.11 Annotation
Where a 16 year old will cannot be found, revocation by destruction is presumed despite an expression of satisfaction with it 6 years before death. Estate of Fonk, 51 W (2d) 339, 187 NW (2d) 147.
853.11 Annotation
Will executed 39 days prior to decedent's marriage which devised entire estate to brother, making no mention of decedent's wife-to-be or for issue of decedent, was revoked by subsequent marriage. In re Estate of Jones, 74 W (2d) 607, 247 NW (2d) 168.
853.11 Annotation
Will burned in basement while testator was in kitchen, 13 steps away, was not burned in "testator's presence" under (1) (b) and was not revoked. Court recommends that testators personally revoke wills by defacing and initialling each page. Re Estate of Haugk, 91 W (2d) 196, 280 NW (2d) 684 (1979).
853.11 Annotation
Disposition of estate of decedent killed by beneficiary discussed. In Matter of Estate of Safran, 102 W (2d) 79, 306 NW (2d) 27 (1981).
853.11 Annotation
Under facts of case, property which was prevented by (3) from passing to divorced spouse passes as if divorced spouse failed to survive testator. In Matter of Estate of Graef, 124 W (2d) 25, 368 NW (2d) 633 (1985).
853.11 Annotation
Lost wills: The Wisconsin law. Burrell and Porter, 60 MLR 351.
853.13
853.13
When will is contractual. 853.13(1)
(1) A contract not to revoke a will can be established only by any of the following:
853.13(1)(a)
(a) Provisions of the will itself sufficiently stating the contract.
853.13(1)(b)
(b) An express reference in the will to a contract not to revoke the will and evidence proving the terms of the contract.
853.13(1)(c)
(c) If the will makes no reference to a contract, clear and convincing evidence apart from the will.
853.13(2)
(2) This section applies to a joint will, except if one of the testators has died prior to April 1, 1971, as well as to any other will. There is no presumption that the testators of a joint will have contracted not to revoke it.
853.13 History
History: 1995 a. 225.
853.13 Annotation
After the death of one party, the other party to a will based on contract cannot in effect avoid the will by giving away property. Estate of Chayka, 47 W (2d) 102, 176 NW (2d) 561.
853.13 Annotation
The existence of an irrevocable contract does not prevent the making of a later will and its admission to probate; the remedy is an action in equity to enforce the contract. Estate of Schultz, 53 W (2d) 643, 193 NW (2d) 655.
853.13 Annotation
See note to 72.12, citing In Matter of Estate of Jacobs, 92 W (2d) 266, 284 NW (2d) 638 (1979).
853.13 Annotation
Whether clear and convincing evidence of a contract exists under sub. (1) (c) is a fact to be found by the trial court and given deference by an appellate court. Estate of Czerniejewski, 185 W (2d) 892, 619 NW (2d) 702 (Ct. App. 1994).
853.13 Annotation
Joint and mutual wills. Kroncke, 43 WBB, No. 5.
853.13 Annotation
Contracts to make joint or mutual wills. O'Donnell, 55 MLR 103.
853.15
853.15
Equitable election if will attempts to dispose of property belonging to beneficiary. 853.15(1)
(1)
Necessity for election. Unless the will provides otherwise, if a will gives a bequest or devise to one beneficiary and also clearly purports to give to another beneficiary a property interest which 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, 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 beneficiary elects not to take under the will, unless the will provides otherwise the bequest or devise given him or her under the will is to be assigned by the court to the other beneficiary in lieu of the property interest which does not pass under the will. This section does not require an election if the property interest belongs to the first beneficiary by reason of transfer or beneficiary designation made by the decedent after the execution of the will.
853.15(2)
(2) Procedure for election. If an election is required under
sub. (1), the following provisions apply:
853.15(2)(a)
(a) The court may by order set a time within which the beneficiary is required to file with the court a written election either to take under the will and forego, waive or transfer the beneficiary's property interest in favor of the other person to whom it is given by the will, or to retain such property interest and not take under the will. The time set shall be not earlier than one month after the necessity for such an election and the nature of the interest given to the beneficiary under the will have been determined.
853.15(2)(b)
(b) If a written election by the beneficiary to take under the will and transfer the beneficiary's property interest in accordance with the will has not been filed with the court within the time set by order, or if no order setting a time has been entered, then prior to the final judgment, the beneficiary is deemed to have elected not to take under the will.
853.15(2)(c)
(c) Except as provided above, participation in the administration by the beneficiary does not constitute an election to take under the will.
853.16
853.16
Effect of reference to another document. 853.16(1)
(1) A reference in a will executed on or after May 3, 1996, to another document that lists tangible personal property not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the distributees with reasonable certainty and is signed and dated by the decedent.
853.16(2)
(2) Another document under
sub. (1) 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.
853.16 History
History: 1995 a. 234.
853.16 Annotation
Wisconsin's New Personal Property Memorandum Law. Slate. Wis. Law. Oct. 1996.
853.17
853.17
Effect of will provision changing beneficiary of life insurance or annuity. 853.17(1)
(1) Any provision in a will which purports to name a different beneficiary of a life insurance or annuity contract than the beneficiary properly designated in accordance with the contract with the issuing company, or its bylaws, is ineffective to change the contract beneficiary unless the contract or the company's bylaws authorizes such a change by will.
853.17(2)
(2) This section does not prevent the court from requiring the contract beneficiary to elect under
s. 853.15 in order to take property under the will; nor does it apply to naming a testamentary trustee as designated by a life insurance policy under
s. 701.09.
853.18
853.18
Designation of beneficiary, payee or owner. 853.18(1)(1) Except as otherwise provided in
ch. 766, no written designation in accordance with the terms of any insurance, annuity or endowment contract, or in any agreement issued or entered into by an insurance company in connection therewith, supplemental thereto or in settlement thereof, and no written designation made under a contract, plan, system or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee or owner of any right, title or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing, is subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift or intestacy, even though that designation or assignment is revocable or the rights of that beneficiary, payee, owner or assignee are otherwise subject to defeasance.
853.18(2)
(2) This section applies to such designations or assignments made either before or after June 25, 1969, by persons who die on or after that date. This section creates no implication of invalidity as to any designation or assignment, of the nature described in
sub. (1), made by any person who dies before that date or as to any declaration, agreement or contract for the payment of money or other transfer of property at death not specified under
sub. (1).
853.18 History
History: 1983 a. 186.
