Capacity to make or revoke a will.
Execution of wills.
Execution of wills outside the state or by nonresidents within this state.
Deposit of will in circuit court during testator's lifetime.
Premarital will or predomestic partnership will.
Equitable election if will attempts to dispose of property belonging to beneficiary.
Effect of will provision changing beneficiary of life insurance or annuity.
Designation of beneficiary, payee or owner.
Unintentional failure to provide for issue of testator.
Presumption that will passes all of testator's interest in property.
Effect of reference to another document.
Effect of reference to acts or events.
Gift of securities.
Transfers to testamentary trusts.
Nonademption of specific gifts in certain instances.
Applicability of general transfers at death provisions.
WISCONSIN BASIC WILLS
Execution of will.
Contents of wills.
Selection of property disposition clause.
Revocation or revision.
Wisconsin basic will.
Wisconsin basic will with trust.
Personal, recreational and household items.
Residuary estate; basic will.
Residuary estate; basic will with trust.
Mandatory clauses; basic will with trust.
Date of execution of will.
Ch. 853 Cross-reference
See definitions in ch. 851
Capacity to make or revoke a will.
Any person of sound mind 18 years of age or older may make and revoke a will.
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
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
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
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
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
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
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
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
Execution of wills.
Every will in order to be validly executed must be in writing and executed with all of the following formalities:
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.
It must be signed by at least 2 witnesses who signed within a reasonable time after any of the following:
The signing of the will as provided under sub. (1)
, in the conscious presence of the witness.
The testator's implicit or explicit acknowledgement of the testator's signature on the will, in the conscious presence of the witness.
The testator's implicit or explicit acknowledgement of the will, in the conscious presence of the witness.
The 2 witnesses required under par. (am)
may observe the signing or acknowledgement under par. (am) 1.
at different times.
The 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
The preceding case was decided prior to the adoption of 1997 Wis. Act 188
, which made extensive revisions to this section.
Self-proved will. 853.04(1)(1)
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.
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.
Subscribed and sworn to before me by ...., the testator, and by ...., and ...., witnesses, this .... day of ...., .....
(Official capacity of officer): ....