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
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.
853.03(2)(am)(am) It must be signed by at least 2 witnesses who signed within a reasonable time after any of the following:
853.03(2)(am)1.
1. The signing of the will as provided under
sub. (1), in the conscious presence of the witness.
853.03(2)(am)2.
2. The testator's implicit or explicit acknowledgement of the testator's signature on the will, in the conscious presence of the witness.
853.03(2)(am)3.
3. The testator's implicit or explicit acknowledgement of the will, in the conscious presence of the witness.
853.03(2)(bm)
(bm) The 2 witnesses required under
par. (am) may observe the signing or acknowledgement under
par. (am) 1. to
3. at different times.
853.03 Annotation
The requisite of [former] sub. (1) that if not signed by the testator, the will must be signed by some person in the testator's presence and by his express direction, is not met by simply taking the testator's hand as an inanimate object and making a mark or signature if the testator fails or is unable to in any manner expressly authorize another to sign for him. Estate of Komarr,
46 Wis. 2d 230,
175 N.W.2d 473 (1973).
853.03 Note
NOTE: The preceding case was decided prior to the adoption of
1997 Wis. Act 188, which made extensive revisions to this section.
853.04
853.04
Self-proved will. 853.04(1)(1)
One-step procedure. A will may be simultaneously executed, attested and made self-proved by the affidavit of the testator and witnesses. The affidavit must be made before an officer authorized to administer oaths under the laws of the state in which execution occurs and must be evidenced by the officer's certificate, under official seal, in substantially the following form:
State of ....
County of ....
I, ...., the testator, sign my name to this instrument this .... day of ...., and being first duly sworn, declare to the undersigned authority all of the following:
1. I execute this instrument as my will.
2. I sign this will willingly, or willingly direct another to sign for me.
3. I execute this will as my free and voluntary act for the purposes expressed therein.
4. I am 18 years of age or older, of sound mind and under no constraint or undue influence.
Testator: ....
We, ...., ...., the witnesses, being first duly sworn, sign our names to this instrument and declare to the undersigned authority all of the following:
1. The testator executes this instrument as his or her will.
2. The testator signs it willingly, or willingly directs another to sign for him or her.
3. Each of us, in the conscious presence of the testator, signs this will as a witness.
4. To the best of our knowledge, the testator is 18 years of age or older, of sound mind and under no constraint or undue influence.
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(2)
(2) Two-step procedure. An attested will may be made self-proved at any time after its execution by the affidavit of the testator and witnesses. The affidavit must be made before an officer authorized to administer oaths under the laws of the state in which the affidavit occurs and must be evidenced by the officer's certificate, under official seal, attached or annexed to the will in substantially the following form:
State of ....
County of ....
We, ...., ...., and ...., the testator and the witnesses whose names are signed to the foregoing instrument, being first duly sworn, do declare to the undersigned authority all of the following:
1. The testator executed the instrument as his or her will.
2. The testator signed willingly, or willingly directed another to sign for him or her.
3. The testator executed the will as a free and voluntary act.
4. Each of the witnesses, in the conscious presence of the testator, signed the will as witness.
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)
(3) Effect of affidavit. The effect of an affidavit in substantially the form under
sub. (1) or
(2) is as provided in
s. 856.16.
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 personal representative 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.
853.09
853.09
Deposit of will in circuit court during testator's lifetime.
