A provision which would have conferred no benefit if the testator had died immediately following execution of the will.
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)
(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 The original will, unless withdrawn under sub.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.
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.
History: 1977 c. 449
; 1981 c. 146
; Sup. Ct. Order, 136 Wis. 2d xx (1987); 1993 a. 172
; 1995 a. 27
The practice of attorneys retaining wills for safekeeping is disapproved. State v. Gulbankian, 54 Wis. 2d 605
, 196 N.W.2d 733
If a will was not withdrawn fraudulently, non-compliance with the witnessing requirement of sub.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
A will is revoked in whole or in part by a subsequent will that is executed in compliance with s. 853.03
and that revokes the prior will or a part thereof expressly or by inconsistency.
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.
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.
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.
(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.
(2m) Premarital or predomestic partnership will.
Entitlements of a surviving spouse or surviving domestic partner under a decedent's will that was executed before marriage to the surviving spouse or before recording of the domestic partnership under ch. 770
are governed by s. 853.12
(3) Transfer to former spouse or former domestic partner.
A transfer under a will to a former spouse or former domestic partner is governed by s. 854.15
(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
(4) Other methods of revocation.
A will is revoked only as provided in this section.
(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.
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.
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.
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 or its revoked part to take effect.
In the absence of an original valid will, the execution and validity of the revived will or part may be established as provided in s. 856.17
When a 16-year-old will could not be found, revocation by destruction was presumed despite an expression of satisfaction with the will 6 years before death. Estate of Fonk, 51 Wis. 2d 339
, 187 N.W.2d 147
Premarital will or predomestic partnership will. 853.12(1)(1)
Entitlement of surviving spouse or surviving domestic partner.
Subject to sub. (3)
, if the testator married the surviving spouse or recorded a domestic partnership under ch. 770
with the surviving domestic partner after the testator executed his or her will, the surviving spouse or surviving domestic partner is entitled to a share of the probate estate.
(2) Value of share.
The value of the share under sub. (1)
is the value of the share that the surviving spouse or surviving domestic partner would have received had the testator died with an intestate estate equal to the value of the testator's net estate, but the value of the net estate shall first be reduced by the value of all of the following:
All devises to or for the benefit of the testator's children who were born before the marriage to the surviving spouse or the domestic partnership with the surviving domestic partner and who are not also the children of the surviving spouse or surviving domestic partner.
All devises to or for the benefit of the issue of a child described in par. (a)
(3) Exceptions. Subsection (1)
does not apply if any of the following applies:
It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse or domestic partnership with the surviving domestic partner.
It appears from the will or other evidence that the will is intended to be effective notwithstanding any subsequent marriage or domestic partnership, or there is sufficient evidence that the testator considered revising the will after marriage or domestic partnership but decided not to.
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.
(4) Priority and abatement.
In satisfying the share provided by this section:
Amounts received by the surviving spouse under s. 861.02
and devises made by will to the surviving spouse or surviving domestic partner are applied first.
History: 2005 a. 216
; 2009 a. 28
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:
Provisions of a will stating the material provisions of the contract.
An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
History: 1995 a. 225
; 1997 a. 188
The existence of an irrevocable contract does not prevent the making of a later will or 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
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).
The preceding cases were decided prior to the adoption of 1997 Wis. Act 188
, which made extensive revisions to this section.
Joint and mutual wills. Kroncke, 43 WBB, No. 5.
Contracts to make joint or mutual wills. O'Donnell, 55 MLR 103.
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.
If the conditions in par. (a)
are fulfilled, the first beneficiary must elect either to take under the will and transfer his or her property in accordance with the will or to retain his or her property and not take under the will. If the first beneficiary elects not to take under the will, unless the will provides otherwise his or her devise under the will shall be assigned to the other beneficiary.
This section does not require an election if the property belongs to the first beneficiary because of transfer or beneficiary designation made by the decedent after the execution of the will.
(2) Procedure for election.
If an election is required under sub. (1)
, the following provisions apply:
The court may by order set a time within which the beneficiary is required to file with the court a written election either to take under the will and forego, waive or transfer the beneficiary's property interest in favor of the other person to whom it is given by the will, or to retain such property interest and not take under the will. The time set shall be not earlier than one month after the necessity for such an election and the nature of the interest given to the beneficiary under the will have been determined.
If a written election by the beneficiary to take under the will and transfer the beneficiary's property interest in accordance with the will has not been filed with the court within the time set by order, or if no order setting a time has been entered, then prior to the final judgment, the beneficiary is deemed to have elected not to take under the will.
Except as provided above, participation in the administration by the beneficiary does not constitute an election to take under the will.
Effect of will provision changing beneficiary of life insurance or annuity. 853.17(1)
Any provision in a will which purports to name a different beneficiary of a life insurance or annuity contract than the beneficiary properly designated in accordance with the contract with the issuing company, or its bylaws, is ineffective to change the contract beneficiary unless the contract or the company's bylaws authorizes such a change by will.
This section does not prevent the court from requiring the contract beneficiary to elect under s. 853.15
in order to take property under the will.
Effective date note
Sub. (2) is shown as amended eff. 7-1-14 by 2013 Wis. Act 92
. Prior to 7-1-14 it reads:
Effective date text
(2) This section does not prevent the court from requiring the contract beneficiary to elect under s. 853.15 in order to take property under the will; nor does it apply to naming a testamentary trustee as designated by a life insurance policy under s. 701.09.
History: 2013 a. 92
Designation of beneficiary, payee or owner. 853.18(1)(1)
Except as otherwise provided in s. 853.15
or 853.17 (1)
or ch. 766
, none of the following is subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift, or intestacy, even though the designation or assignment is revocable or the rights of the beneficiary, payee, owner, or assignee are otherwise subject to defeasance:
A written designation in accordance with the terms of any insurance, annuity, or endowment contract.
Any agreement issued or entered into by an insurance company supplemental to or in settlement of any insurance, annuity, or endowment contract.
Any written designation made under a contract, plan, system, or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing, or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee, or owner of any right, title, or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing.
This section applies to such designations or assignments made either before or after June 25, 1969, by persons who die on or after that date. This section creates no implication of invalidity as to any designation or assignment, of the nature described in sub. (1)
, made by any person who dies before that date or as to any declaration, agreement or contract for the payment of money or other transfer of property at death not specified under sub. (1)
History: 1983 a. 186
; 2005 a. 216
The phrase "statute governing the transfer of property by will" in sub. (1) refers to statutes establishing formalities for the execution of a valid will. In Matter of Estate of Habelman, 145 Wis. 2d 228
, 426 N.W.2d 363
(Ct. App. 1988).
The effect of a lifetime gift by the testator on the rights of a beneficiary under the will is governed by s. 854.09
History: 1993 a. 486
; 1997 a. 188
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)
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:
It appears from the will or from other evidence that the omission was intentional.
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.
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.
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: