853.60 Mandatory clauses. 853.61 Mandatory clauses; basic will with trust. 853.62 Date of execution of will. Ch. 853 Cross-referenceCross-reference: See definitions in ch. 851. GENERAL RULES
853.01853.01 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 AnnotationWhen 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 AnnotationThe “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 AnnotationThe 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 AnnotationAn 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 AnnotationA 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 AnnotationParent-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 AnnotationA 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 AnnotationWisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.
853.03853.03 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(2)(c)(c) For purposes this subsection, “conscious presence” includes the simultaneous remote appearance by 2-way, real-time audiovisual communication technology if all of the following conditions are satisfied: 853.03(2)(c)1.1. The signing is supervised by an attorney in good standing licensed by this state. The supervising attorney may serve as one of the remote witnesses. 853.03(2)(c)2.2. The testator attests to being physically located in this state during the 2-way, real-time audiovisual communication. 853.03(2)(c)3.3. Each remote witness attests to being physically located in this state during the 2-way, real-time audiovisual communication. 853.03(2)(c)4.4. The testator and each of the remote witnesses identify themselves. If the testator and remote witnesses are not personally known to each other and to the supervising attorney, the testator and each of the remote witnesses display photo identification. 853.03(2)(c)5.5. The testator identifies anyone else present in the same physical location as the testator and, if possible, the testator makes a visual sweep of the testator’s physical surroundings so that the supervising attorney and each remote witness can confirm the presence of any other person. 853.03(2)(c)6.6. The testator displays the will, confirms the total number of pages and the page number of the page on which the testator’s signature will be affixed, and declares to the remote witnesses and the supervising attorney all of the following: 853.03(2)(c)6.c.c. That the document is being executed as a free and voluntary act. 853.03(2)(c)7.7. The testator, the testator with the assistance of another person 18 years of age or older with the testator’s consent, or another person 18 years of age or older signing in the testator’s name at the testator’s direction and in the testator’s physical presence, executes the will in a manner that allows each of the remote witnesses and the supervising attorney to see the execution. 853.03(2)(c)8.8. The audiovisual communication technology used allows communication by which a person is able to see, hear, and communicate in an interactive way with another person in real time using electronic means, except that if the testator, a remote witness, or the supervising attorney has an impairment that affects hearing, sight, or speech, assistive technology or learned skills may be substituted for audio or visual if it allows that person to actively participate in the signing in real time. 853.03(2)(c)9.9. The will indicates that it is being executed pursuant to this section. 853.03(2)(c)10.a.a. The testator, or another person at the direction of the testator, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the supervising attorney within a reasonable time after execution. The supervising attorney then personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the remote witnesses within a reasonable time. The first remote witness to receive the original will signs the original will as a witness and forwards the entire signed original will by personal delivery or U.S. mail or commercial courier service within a reasonable time to the 2nd remote witness, who signs it as a witness and forwards the entire signed original will by personal delivery or U.S. mail or commercial courier service within a reasonable time to the supervising attorney. 853.03(2)(c)10.b.b. The testator, or another person at the direction of the testator, personally delivers or transmits by U.S. mail or commercial courier service the entire signed original will to the supervising attorney within a reasonable time after execution and transmits by facsimile or electronic means a legible copy of the entire signed original will directly to each remote witness within a reasonable time after execution. Each remote witness then signs the transmitted copy of the will as a witness and transmits the entire signed copy of the will by personal delivery or U.S. mail or commercial courier service to the supervising attorney within a reasonable time after witnessing. The signed original and signed copies together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving the signed original and signed copies, compiles the signed original and signed copies into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the testator, in which case the compiled document shall constitute the original. 853.03(2)(c)10.c.c. The testator and each of the remote witnesses sign identical copies of the original. The testator, or another person at the direction of the testator, and each of the remote witnesses personally deliver or transmit by U.S. mail or commercial courier service the signed originals to the supervising attorney within a reasonable time after execution. All of the signed originals together shall constitute one original document, unless the supervising attorney, within a reasonable time after receiving all signed originals, compiles the originals into one document by attaching the signature pages of each remote witness to the original signed by or on behalf of the testator, in which case the compiled document shall constitute the original. 853.03(2)(c)11.11. The supervising attorney completes an affidavit of compliance that contains the following information: 853.03(2)(c)11.b.b. The name and residential or business address of each remote witness. 853.03(2)(c)11.c.c. The address within this state where the testator was physically located at the time the testator signed the will. 853.03(2)(c)11.d.d. The address within this state where each remote witness was physically located at the time the remote witness witnessed the testator’s execution of the will. 853.03(2)(c)11.e.e. A statement that the testator and remote witnesses were all known to each other and the supervising attorney or a description of the form of photo identification used to confirm the identity of the testator and each remote witness. 853.03(2)(c)11.f.f. Confirmation that the testator declared that the testator is 18 years of age or older, that the document is the testator’s will, and that the document was being executed as the testator’s free and voluntary act. 853.03(2)(c)11.g.g. Confirmation that each of the remote witnesses and the supervising attorney were able to see the testator, the testator with the assistance of another person 18 years of age or older with the testator’s consent, or another person 18 years of age or older signing in the testator’s name at the testator’s direction and in the testator’s physical presence, sign, and that the testator appeared to be 18 years of age or older and acting freely and voluntarily. 853.03(2)(c)11.h.h. A description of the audiovisual technology used for the signing process. 853.03(2)(c)11.i.i. If the will was not signed in counterpart, a description of the method used to forward the will to each remote witness for signing and to the supervising attorney after signing. 853.03(2)(c)11.j.j. If the will was signed in counterpart, a description of the method used to forward each counterpart to the supervising attorney and, if applicable, how and when the supervising attorney physically compiled the signed paper counterparts into a single document containing the will, the signature of the testator, and the signatures of the remote witnesses. 853.03(2)(c)11.k.k. The name, state bar number, and business or residential address of the supervising attorney. 853.03(2)(c)11.L.L. Any other information that the supervising attorney considers to be material with respect to the testator’s capacity to sign a valid will, the testator’s and witnesses’ compliance with this section, or any other information that the supervising attorney deems relevant to the execution of the will. 853.03(2)(c)13.13. An affidavit of compliance executed in compliance with this section shall constitute a self-proving affidavit executed in compliance with s. 853.04 (2). 853.03(2)(c)14.14. An affidavit of compliance described in this paragraph shall be substantially in the following form: AFFIDAVIT OF COMPLIANCE
State of ....
County of ....
The undersigned, being first duly sworn under oath, states as follows:
This Affidavit of Compliance is executed pursuant to Wis. Stat. § 853.03 (2) (c) to document the execution of the will of [name of testator] via remote appearance by 2-way, real-time audiovisual communication technology on [date]. 1. The name and residential address of the testator is ....
2. The name and [residential or business] address of remote witness 1 is ....
3. The name and [residential or business] address of remote witness 2 is ....
4. The address within the state of Wisconsin where the testator was physically located at the time the testator signed the will is ....
5. The address within the state of Wisconsin where remote witness 1 was physically located at the time the remote witness witnessed the testator’s execution of the will is ....
6. The address within the state of Wisconsin where remote witness 2 was physically located at the time the remote witness witnessed the testator’s execution of the will is ....
7. The testator and remote witnesses were all known to each other and to the supervising attorney. - OR - The testator and remote witnesses were not all known to each other and to the supervising attorney. Each produced the following form of photo identification to confirm his or her identity:
....
8. The testator declared that the testator is 18 years of age or older, that the document is the testator’s will, and that the document was being executed as the testator’s free and voluntary act.
9. Each of the remote witnesses and the supervising attorney were able to see the testator, the testator with the assistance of another person 18 years of age or older with the testator’s consent, or another person 18 years of age or older signing in the testator’s name at the testator’s direction and in the testator’s physical presence, sign. The testator appeared to be 18 years of age or older and acting freely and voluntarily.
10. The audiovisual technology used for the signing process was ....
11. The will was not signed in counterpart. The following methods were used to forward the will to each remote witness for signing and to the supervising attorney after signing. - OR - The will was signed in counterpart. The following methods were used to forward each counterpart to the supervising attorney. [If applicable] - The supervising attorney physically compiled the signed paper counterparts into a single document containing the will, the signature of the testator, and the signatures of the remote witnesses on [date] by [e.g., attaching page 7 from each counterpart signed by a remote witness to the back of the will signed by the testator].
12. The name, state bar number, and [business or residential] address of the supervising attorney is ....
13. [Optional] Other information that the supervising attorney considers to be material is as follows: ....
.... (signature of supervising attorney)
Subscribed and sworn to before me on .... (date) by .... (name of supervising attorney).
.... (signature of notarial officer)
Stamp
.... (Title of office)
[My commission expires: ....]
853.03 AnnotationThe requirement of s. 238.06, 1969 stats., 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 (1970). 853.03 NoteNOTE: The preceding case was decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to this section. 853.04853.04 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:
