853.19 History History: 1993 a. 486; 1997 a. 188.
853.25 853.25 Unintentional failure to provide for issue of testator.
853.25(1)(1)Children born or adopted after making of the will.
853.25(1)(a)(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:
853.25(1)(a)1. 1. It appears from the will or from other evidence that the omission was intentional.
853.25(1)(a)2. 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.
853.25(1)(b) (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.
853.25(1)(c) (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:
853.25(1)(c)1. 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.
853.25(1)(c)2. 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.
853.25(1)(c)3. 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.
853.25(1)(c)4. 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.
853.25(1)(d) (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.
853.25(2) (2)Living issue omitted by mistake. Except as provided in sub. (5), if clear and convincing evidence proves that 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, 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.
853.25(3) (3)Time for presenting demand for relief. A demand for relief under this section must be presented to the court in writing not later than (a) entry of the final judgment, or (b) 6 months after allowance of the will, whichever first occurs.
853.25(4) (4)From what estate share is to be taken. Except as provided in sub. (5), the court shall in its final judgment assign a share provided under sub. (1) (b) as follows:
853.25(4)(a) (a) First, from intestate property.
853.25(4)(b) (b) Any balance from each 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. If the intention of the testator, shown by clear and convincing evidence, in relation to some specific gift or other provision in the will would be defeated by assignment of the share as provided in this paragraph, the court may adopt a different apportionment and may exempt a specific devise or other provision.
853.25(5) (5)Discretionary power of court to assign different share. If in any case under sub. (1) or (2) the court determines that the share is in a different amount or form from what the testator would have wanted to provide for the omitted child or issue of a deceased child, 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 intent of the testator.
853.25 History History: 1993 a. 486; 1997 a. 188.
853.27 853.27 Lapse. The rights under a will of a beneficiary who predeceases the testator are governed by s. 854.06.
853.27 History History: 1993 a. 486; 1997 a. 188.
853.27 Annotation A bequest to a wife "and to her heirs and assigns forever", where the wife predeceased the testator, held ambiguous where the words were in a residuary clause so that the effect would be intestacy if strictly construed, the draftsman testified that the words were not used in a technical sense and the will acknowledged testator's debt to his wife. Estate of Mangel, 51 W (2d) 55, 186 NW (2d) 276.
853.27 Annotation A will containing a disinheritance clause and a residuary clause naming a residuary legatee, not related to the testatrix, with no gift over, was subject to the anti-lapse statute as the legacy lapsed when the legatee predeceased the testatrix; hence the lapsed gift passed to the heirs-at-law by intestate succession, not to the children of the deceased named beneficiary. Estate of Connolly, 65 W (2d) 440, 222 NW (2d) 885.
853.27 Annotation Section 853.27 does not deny equal protection by arbitrarily creating 2 classes of beneficiaries—relatives and nonrelatives—because the classification is entirely reasonable and well founded in public policy. Estate of Connolly, 65 W (2d) 440, 222 NW (2d) 885.
853.27 Note NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188 which made extensive revisons to s. 853.27 and created s. 854.06.
853.29 853.29 After-acquired property. A will is presumed to pass all property that the testator owns at the testator's death and that the testator has power to transfer by will, including property acquired by the testator after the execution of the will or acquired by the testator's estate.
853.29 History History: 1993 a. 486; 1997 a. 188.
853.31 853.31 Presumption that will passes all of testator's interest in property. Any gift of property by will is presumed to pass all the estate or interest which the testator could lawfully will in the property unless it clearly appears by the will, interpreted in light of the surrounding circumstances, that the testator intended to pass a less estate or interest.
853.32 853.32 Effect of reference to another document.
853.32(1) (1) Incorporation. A will may incorporate by reference another writing or document if all of the following apply:
853.32(1)(a) (a) The will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document.
853.32(1)(b) (b) The other writing or document was in existence when the will was executed.
853.32(1)(c) (c) The other writing or document is sufficiently described in the will to permit identification with reasonable certainty.
853.32(1)(d) (d) The will was executed in compliance with s. 853.03 or 853.05.
853.32(2) (2)Disposition of tangible personal property.
853.32(2)(a)(a) 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.
853.32(2)(b) (b) Another document under 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.
853.32(2)(c) (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.
853.32(2)(d) (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.
853.32(2)(e) (e) Beneficiaries under a document that is described in par. (a) are not interested parties for purposes of s. 879.03.
853.32(3) (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.
853.32 History History: 1995 a. 234; 1997 a. 188 ss. 144, 145, 153.
853.32 Annotation Wisconsin's New Personal Property Memorandum Law. Slate. Wis. Law. Oct. 1996.
853.325 853.325 Effect of reference to acts or events. A will may dispose of property by reference to acts or events that have significance apart from their effect on the disposition of property under the will and that do not occur solely for the purpose of determining the disposition of property under the will. Reference to the execution or revocation of another individual's will fulfills the requirements under this section. This section applies whether the acts or events occur before or after execution of the will or before or after the testator's death.
853.325 History History: 1997 a. 188.
853.33 853.33 Gift of securities. Section 854.11 governs gifts of securities under a will.
853.33 History History: 1997 a. 188.
853.35 853.35 Nonademption of specific gifts in certain instances. The rights of a beneficiary with respect to a specific gift that is destroyed, damaged, sold or condemned before the testator's death are governed by s. 854.08.
853.35 History History: 1993 a. 486; 1997 a. 188.
853.40 853.40 Disclaimer. A person to whom property would otherwise pass under a will may disclaim all or part of the property as provided in s. 854.13.
853.40 Annotation Unless barred by statute, debtor can disclaim bequest, thus defeating creditor's action under 813.026. Estate of Goldhammer v. Goldhammer, 138 W (2d) 77, 405 NW (2d) 693 (Ct. App. 1987).
853.40 Annotation Except for a tax-related "qualified disclaimer", the nine-month time limit for disclaimer of a future interest commences on the death of the life tenant. Estate of Balson, 183 W (2d) 31, 515 NW (2d) 474 (Ct. App. 1994).
853.40 Note NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188 which made extensive revisons to s. 853.27 and created s. 854.06.
853.41 853.41 Applicability of general transfers at death provisions. Chapter 854 applies to transfers under wills, including transfers under a Wisconsin basic will or basic will with trust.
853.41 History History: 1997 a. 188.
subch. II of ch. 853 SUBCHAPTER II
WISCONSIN BASIC WILLS
853.50 853.50 Definitions. In ss. 853.50 to 853.62:
853.50(1) (1) "By right of representation" means according to the method specified in s. 854.04 (1).
853.50(2) (2) "Children" includes all children whether born or adopted before or after a Wisconsin basic will or basic will with trust is executed.
853.50(3) (3) "Issue" means children, grandchildren, great-grandchildren, and lineal descendants of more remote degrees, including those who occupy that relation by reason of adoption under s. 854.20 and nonmarital children and their lineal descendants to the extent provided by s. 852.05.
853.50(4) (4) "Testator" means any person choosing to make a Wisconsin basic will or basic will with trust.
853.50(5) (5) "Trustee" means a person so designated in a Wisconsin basic will with trust and any other person acting at any time as the trustee under a Wisconsin basic will with trust.
853.50(6) (6) "Wisconsin basic will" means a Wisconsin basic will executed in accordance with ss. 853.50 to 853.62.
853.50(7) (7) "Wisconsin basic will with trust" means a Wisconsin basic will with trust executed in accordance with ss. 853.50 to 853.62.
853.50 History History: 1983 a. 376; 1997 a. 188.
853.51 853.51 Execution of will.
853.51(1)(1) The only method of executing a Wisconsin basic will or basic will with trust is for all of the following to occur:
853.51(1)(a) (a) The testator shall do all of the following:
853.51(1)(a)1. 1. Complete the blanks, boxes and lines substantially in accordance with the instructions.
853.51(1)(a)2. 2. Sign the will.
853.51(1)(bc) (bc) The witnesses shall comply with s. 853.03 (2).
853.51(2m) (2m) Any failure to comply with the instructions in a Wisconsin basic will or basic will with trust, other than the requirements for the testator's and witnesses' signatures, does not affect the validity of the will.
853.51 History History: 1983 a. 376; 1997 a. 188.
853.52 853.52 Contents of wills.
853.52(1)(1) There are 2 Wisconsin basic wills: the Wisconsin basic will and the Wisconsin basic will with trust.
853.52(2) (2) The Wisconsin basic will includes all of the following:
853.52(2)(a) (a) The contents of the form for the Wisconsin basic will under s. 853.55.
853.52(2)(b) (b) The full texts of each of the following:
853.52(2)(b)1. 1. The definitions under s. 853.50.
853.52(2)(b)2. 2. The clause under s. 853.57.
853.52(2)(b)3. 3. The property disposition clause under s. 853.58 adopted by the testator.
853.52(2)(b)4. 4. The mandatory clauses under s. 853.60.
853.52(3) (3) The Wisconsin basic will with trust includes all of the following:
853.52(3)(a) (a) The contents of the form for the Wisconsin basic will with trust under s. 853.56.
853.52(3)(b) (b) The full texts of each of the following:
853.52(3)(b)1. 1. The definitions under s. 853.50.
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This is an archival version of the Wis. Stats. database for 1997. See Are the Statutes on this Website Official?