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. 853.25(2)(a)(a) 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 if the child or issue was born or adopted after the execution of the will, as follows:
853.25(2)(a)1.
1. If no children were included in the will but some or all of those children were omitted by mistake, then
sub. (1) (b) provides for the share of any child or issue omitted by mistake.
853.25(2)(a)2.
2. If some children were included in the will but other children were omitted by mistake, then
sub. (1) (c) provides for the share of any child or issue omitted by mistake.
853.25(2)(b)
(b) 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)(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.
853.27
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 will clause providing that if any beneficiary dies within 5 months of the testator, the deceased beneficiary's share is to be treated as if the beneficiary predeceased the testator, served to pass a deceased beneficiary's share to her children under the anti-lapse statute. Firehammer v. Marchant,
224 Wis. 2d 673,
591 N.W.2d 898 (Ct. App. 1999),
98-0586.
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)(am)(am) A will may incorporate by reference another writing or document if all of the following apply:
853.32(1)(am)1.
1. The will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document.
853.32(1)(am)2.
2. The other writing or document was in existence when the will was executed.
853.32(1)(am)3.
3. The other writing or document is sufficiently described in the will to permit identification with reasonable certainty.
853.32(1)(bm)
(bm) A writing or document is incorporated into a will under
par. (am) even if the writing or document is not 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 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. The court may enforce a document that is not dated but that fulfills all of the other requirements under this paragraph.
853.32(2)(am)
(am) Another document under
par. (a) is valid if it was signed in compliance with
s. 853.03 (1) or with the law of the place where the document was signed, or where the testator resided, was domiciled, or was a national at the time the document was signed or at the time of death, even if it was not otherwise executed in compliance with
s. 853.03 (2) or
853.05.
853.32(2)(b)
(b) Another document under
par. (a) is valid even if any of the following applies:
853.32(2)(b)1.
1. The document does not exist when the will is executed.
853.32(2)(b)3.
3. The document 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 trusts. The validity and implementation of a will provision that purports to transfer or appoint property to a trust are governed by
s. 701.0419.
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.
853.34
853.34
Transfers to testamentary trusts. 853.34(1)
(1)
Testamentary transfer to trust of another. A transfer or appointment by will shall not be held invalid because it is made to a trust created, or to be created, under the will of another person if the will of such other person was executed, or was last modified with respect to the terms of such trust, prior to the death of the person making the transfer or appointment and such other person's will is admitted to probate prior to, or within 2 years after, the death of the person making the transfer or appointment. Property included in such a transfer or appointment shall not be considered property subject to administration as part of the other person's estate but shall pass directly to that other person's testamentary trustee, be added to the designated trust and administered as a part thereof.
853.34(2)
(2) Invalid testamentary transfer. If such a transfer or appointment by will is not accepted by the testamentary trustee of such other person or if no will of such other person which meets the conditions specified in
sub. (1) is admitted to probate within the period therein limited, and if the will containing such transfer or appointment by will makes no alternative disposition of the assets, the will shall be construed as creating a trust upon the terms contained in the documents constituting the will of such other person as of the date of death of the person making the transfer or appointment by will.
853.34(3)
(3) Assets transferred to trusts created by will. If a trustee of a trust created by a testator's will is designated as the beneficiary of a transfer under another governing instrument, as defined in
s. 854.01 (2), at the death of the testator or at the death of a 3rd party, the transfer of any assets under that other governing instrument to the trustee does not cause the transferred assets to be included in the property administered as part of the testator's estate. The transferred assets are not subject to taxes, debts, or charges enforceable against the testator's estate to any greater extent than if the proceeds were payable to a beneficiary other than the testator's estate.
853.34 History
History: 1971 c. 66; Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975);
1975 c. 218;
1987 a. 27;
1989 a. 278;
1991 a. 316;
2013 a. 92 ss.
153,
154,
331; Stats. 2013 s. 853.34.
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, a debtor can disclaim a bequest, thus defeating a creditor's action under s. 813.026. Estate of Goldhammer v. Goldhammer,
138 Wis. 2d 77,
405 N.W.2d 693 (Ct. App. 1987).
853.40 Annotation
Except for a tax-related "qualified disclaimer," the 9-month time limit for disclaimer of a future interest commences on the death of the life tenant. Estate of Balson,
183 Wis. 2d 31,
515 N.W.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 revisions 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.
WISCONSIN BASIC WILLS
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(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.
