Wisconsin Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – Wisconsin

Note:    This summary is not intended to be an all inclusive discussion of the law of wills in Wisconsin, but does contain basic and other information.  This summary does not include a discussion of hand written wills.

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

Execution of wills: Every will in order to be validly executed must be in writing and executed with all of the following formalities:
(1) It must be signed by the testator.
(2) It must be signed by 2 or more witnesses based on the testator’s implicit or explicit acknowledgment of the testator’s signature on the will, within the conscious presence of each of the witnesses.853.03

Self-proved will.

(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): …

(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 officers certificate, under official seal, attached or annexed to the will 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): ….

(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): ….

(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. 853.04

Foreign wills: A will is validly executed if it is in writing and it is executed according to the laws of Wisconsin, or the will is executed in accordance with the law of the state where the will was executed, the place where the testator resided, was domiciled or was a national at the time of execution, or the place where the testator resided, was domiciled or was a national at the time of death.853.05

Witnesses: 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.

Interested Witnesses: A will is not invalidated because it is signed by an interested witness. However, 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.

This provision does not apply if the will is also signed by 2 disinterested witnesses in addition to the interested witness or if there is sufficient evidence that the testator intended the full transfer to take effect.  An executor or trustee names in the will is not considered an interested witness. 853.07

Deposit of will in circuit court during testator’s lifetime:

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.

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 disc, 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.

WITHDRAWAL. 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. 853.09

Revocation: A will is revoked in whole or in part by a subsequent will that is executed in compliance with law 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.

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.

Marriage after Will:    The spouse of a person who signed a will prior to marriage is entitled to a portion of the estate unless it appears from the will that the will was made in contemplation of the marriage, it appears from the will or other evidence that the will is intended to be effective notwithstanding any subsequent marriage, or there is sufficient evidence that the testator considered revising the will after marriage but decided not to, or the testator provided for the spouse 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, or 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. 853.11

Contract to make a will: 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:
(a) Provisions of a will stating the material provisions of the contract.
(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
(c) A valid written contract, including a marital property agreement under s. 766.58.
(d) Clear and convincing extrinsic evidence.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. 853.13

Equitable election if will attempts to dispose of property belonging to beneficiary.

(1) NECESSITY FOR ELECTION.

(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.(b) 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.(c) 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:(a) TThe 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.(b) 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.(c) Except as provided above, participation in the administration by the beneficiary does not constitute an election to take under the will. 853.15

Effect of will provision changing beneficiary of life insurance or annuity: 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. 853.17

Effect of reference to another document: A will may incorporate by reference another writing or document if all of the following apply:
(a) The will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document.
(b) The other writing or document was in existence when the will was executed.
(c) The other writing or document is sufficiently described in the will to permit identification with reasonable certainty.
(d) The will was executed in compliance with law. 853.32.

Separate writing:
(a) A reference in a will executed on or after May 3, 1996, 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.
(b) Another document under par. (a) is valid even if it does not exist when the will is executed, even if it is changed after the will is executed and even if it has no significance except for its effect on the disposition of property by the will.
(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.
(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.
(e) Beneficiaries under a document that is described in par.
(f) are not interested parties for purposes of s. 879.03.

Unintentional failure to provide for issue of testator.

(1) CHILDREN BORN OR ADOPTED AFTER MAKING OF THE WILL.

(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:

1. It appears from the will or from other evidence that the omission was intentional.

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.(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.(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 testators estate as follows:

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.

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.

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.

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.(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.

(2) LIVING ISSUE OMITTED BY MISTAKE.

(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:

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.

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.(b) Failure to mention a child or issue in the will is not in itself evidence of mistake or accident.

(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.

(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:(a) First, from intestate property.(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.

(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. 853.25

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.

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. 853.31.

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.

Related Wisconsin Legal Forms


Inside Wisconsin Last Will and Testament Law