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)(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 History
History: 1997 a. 188;
1999 a. 32.
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)(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)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(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)(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 Wis. 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 Wis. 2d 605,
196 N.W.2d 733.
853.09 Annotation
Where a will was not withdrawn fraudulently, non-compliance with the witnessing requirement of sub. (3) did not invalidate the revocation of the will. Re Estate of Haugk,
91 Wis. 2d 196,
280 N.W.2d 684 (1979).
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.
853.11(1)(bm)1.1. 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.
853.11(1)(bm)2.
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.
853.11(1)(bm)3.
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.
853.11(1m)
(1m) Revocation by physical act. A will is revoked in whole or in part by burning, tearing, canceling, 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.
853.11(2)(a)(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.
853.11(2)(b)
(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:
853.11(2)(b)1.
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.
853.11(2)(b)2.
2. All devises to or for the benefit of the issue of a child described in
subd. 1.
853.11(2)(c)
(c)
Exceptions. Paragraph (a) does not apply if any of the following applies:
853.11(2)(c)1.
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.
853.11(2)(c)2.
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.
853.11(2)(c)3.
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.
853.11(2)(c)4.
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.
853.11(2)(d)
(d)
Priority and abatement. In satisfying the share provided by this subsection:
853.11(2)(d)1.
1. Amounts received by the surviving spouse under
s. 861.02 and devises made by will to the surviving spouse are applied first.
853.11(3)
(3) Former spouse. The effect of a transfer under a will to a former spouse is governed by
s. 854.15.
853.11(3m)
(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.
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)(a)(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.
853.11(6)(b)
(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.
853.11(6)(c)
(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.
853.11(6)(d)
(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.
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 Wis. 2d 339,
187 N.W.2d 147.
853.13(1)(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:
853.13(1)(a)
(a) Provisions of a will stating the material provisions of the contract.
853.13(1)(b)
(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
853.13(2)
(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.
853.13 History
History: 1995 a. 225;
1997 a. 188.
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 Wis. 2d 643,
193 N.W.2d 655.
853.13 Annotation
Whether clear and convincing evidence of a contract exists is a fact to be found by the trial court and given deference by an appellate court. Estate of Czerniejewski,
185 Wis. 2d 892,
619 N.W.2d 702 (Ct. App. 1994).
853.13 Note
NOTE: The preceding cases were decided prior to the adoption of
1997 Wis. Act 188, which made extensive revisions to this section.
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)(a)(a) Unless the will provides otherwise, this subsection applies if a will gives a devise to one beneficiary and also clearly purports to give to another beneficiary property that does not pass under the will but belongs to the first beneficiary by right of ownership, survivorship, beneficiary designation or otherwise.
