CHAPTER 853
WILLS
SUBCHAPTER I
GENERAL RULES
853.01 Capacity to make or revoke a will.
853.03 Execution of wills.
853.05 Execution of wills outside the state or by nonresidents within this state.
853.09 Deposit of will in circuit court during testator's lifetime.
853.15 Equitable election if will attempts to dispose of property belonging to beneficiary.
853.17 Effect of will provision changing beneficiary of life insurance or annuity.
853.18 Designation of beneficiary, payee or owner.
853.25 Unintentional failure to provide for issue of testator.
853.29 After-acquired property.
853.31 Presumption that will passes all of testator's interest in property.
853.32 Effect of reference to another document.
853.325 Effect of reference to acts or events.
853.33 Gift of securities.
853.35 Nonademption of specific gifts in certain instances.
853.41 Applicability of general transfers at death provisions.
SUBCHAPTER II
WISCONSIN BASIC WILLS
853.51 Execution of will.
853.52 Contents of wills.
853.53 Selection of property disposition clause.
853.54 Revocation or revision.
853.55 Wisconsin basic will.
853.56 Wisconsin basic will with trust.
853.57 Personal, recreational and household items.
853.58 Residuary estate; basic will.
853.59 Residuary estate; basic will with trust.
853.60 Mandatory clauses.
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.
GENERAL RULES
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
When the proponent, a confidant of the decedent and the sole beneficiary, actively participated in the procurement, drafting, and execution of the will under highly suspicious circumstances, a presumption of undue influence was raised. In re Estate of Malnar,
73 Wis. 2d 192,
243 N.W.2d 435 (1976).
853.01 Annotation
The "disposition to influence" element of the 4-factor test of undue influence means a willingness to do something wrong or unfair to obtain a share of an estate. The mere fact that a will benefits an alleged influencer does not prove the "coveted-result" element of the test. Elements of testamentary capacity are discussed. In Matter of Estate of Becker,
76 Wis. 2d 336,
251 N.W.2d 431 (1977).
853.01 Annotation
The 4-element test to prove undue influence requires showing: 1) susceptibility to undue influence; 2) opportunity to influence; 3) disposition to influence; and 4) coveted result. Alternatively undue influence may be proved under a two prong test by showing: 1) the existence of a confidential relationship between the testator and favored beneficiary; and 2) suspicious circumstances surrounding making the will. In re Estate of Kamesar,
81 Wis. 2d 151,
259 N.W.2d 733 (1977). See also In re Estate of Taylor,
81 Wis. 2d 687,
260 N.W.2d 803 (1977).
853.01 Annotation
An insane delusion cannot be a ground for disallowance of a will unless it is shown that the delusion materially affected the disposition embodied in the will. In re Estate of Evans,
83 Wis. 2d 259,
265 N.W.2d 529 (1978).
853.01 Annotation
A legal guardianship, in and of itself, does not prove lack of testamentary capacity. In Matter of Estate of Sorensen,
87 Wis. 2d 339,
274 N.W.2d 694 (1979).
853.01 Annotation
Parent-child relationships as a "confidential relationship" under the 2-prong test for undue influence are different than relationships with nonrelatives. In Matter of Estate of Sensenbrenner,
89 Wis. 2d 677,
278 N.W.2d 887 (1979).
853.01 Annotation
A third party, unnamed in a will, has no standing and may not maintain a negligence action against the drafting attorney although extrinsic evidence of the testator's intent is available. Beauchamp v. Kemmeter, 2001 WI App 5,
240 Wis. 2d 733,
625 N.W.2d 297,
00-0470.
853.01 Annotation
The objector must prove lack of testamentary capacity by clear, convincing, and satisfactory evidence. In re Estate of Persha, 2002 WI App 113,
255 Wis. 2d 767,
649 N.W.2d 661,
01-1132.
853.01 Annotation
There is no right to a jury trial in a will contest. In re Estate of Sharpley, 2002 WI App 201, 257 Wis. 2d. 152,
653 N.W.2d 124,
01-2167.
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.
