WISCONSIN LEGAL INFORMATION

Link to the Wisconsin Statutes online which contain the portion of the Probate Code dealing with last wills.

Last Will information from the Wisconsin Bar Association

American Bar Association Guide to Wills and Estates

American Bar Association, Estate Planning

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Selected Wisconsin Statutes

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• 853.01 Capacity to make or revoke a will. Any person of sound mind 18 years of age or older may make and revoke a will.
• 853.03 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, 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.
  (2) It must be signed by 2 or more witnesses, each of whom signed within a reasonable time after witnessing any of the following:
  1. The signing of the will as provided under sub. (1).
  2. The testator's implicit or explicit acknowledgement of the testator's signature on the will, within the conscious presence of each of the witnesses.
  3. The testator's implicit or explicit acknowledgement of the will, within the conscious presence of each of the witnesses.
• 853.04 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): ....
  
  
• 853.05 Execution of wills outside the state or by nonresidents within this state.
  (1) A will is validly executed if it is in writing and any of the following applies:
  1. The will is executed according to s. 853.03.
  2. The will is executed in accordance with the law, at the time of execution or at the time of death, of any of the following:
  1. The place where the will was executed.
  2. The place where the testator resided, was domiciled or was a national at the time of execution.
  3. The place where the testator resided, was domiciled or was a national at the time of death.
  (2) Any will under sub. (1) (b) has the same effect as if executed in this state in compliance with s. 853.03.
• 853.07 Witnesses.
  (1) 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. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved.
  (2)
  1. Subject to pars. (b) and (c), a will is not invalidated because it is signed by an interested witness.
  2. Except as provided in par. (c), 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. Valuation is to be made as of testator's death.
  3. Paragraph (b) does not apply if any of the following applies:
     1. The will is also signed by 2 disinterested witnesses.
     2. There is sufficient evidence that the testator intended the full transfer to take effect.
     3. An attesting witness is interested only if the will gives to the witness or spouse some personal and beneficial interest. The following are not interests which are personal and beneficial:
     
     (a) A provision for employment as personal representative or trustee or in some other capacity after death of the testator and a provision for compensation at a rate or in an amount not greater than that usual for the services to be performed;
     (b) A provision which would have conferred no benefit if the testator had died immediately following execution of the will.
• 853.11 Revocation.
  (1) Revocation by writing.
  1. A will is revoked in whole or in part by a subsequent will that is executed in compliance with s. 853.03 or 853.05 and that revokes the prior will or a part thereof expressly or by inconsistency.
  853.11(1)(bm)1.
  1. 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.
  2. 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.
  3. 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.
  853.11(1m)
  (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.
  853.11(2)--(2) Premarital will.
  (a) Entitlement of surviving spouse. Subject to par. (c), if the testator married the surviving spouse after the testator executed his or her will, the surviving spouse is entitled to a share of the probate estate.
  (b) Value of share. The value of the share under par. (a) is the value of the share that the surviving spouse would have received had the testator died with an intestate estate equal to the value of the net estate of the decedent less the value of all of the following:
  1. All devises to or for the benefit of the testator's children who were born before the marriage to the surviving spouse and who are not also the children of the surviving spouse.
  2. All devises to or for the benefit of the issue of a child described in subd. 1.
  3. All devises that pass under s. 854.06, 854.07, 854.21 or 854.22 to or for the benefit of children described in subd. 1. or issue of those children.
  
  (c) Exceptions. Paragraph (a) does not apply if any of the following applies:
  1. It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse.
  2. 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.
  3. 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.
  4. 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.
  (d) Priority and abatement. In satisfying the share provided by this subsection:
  1. Amounts received by the surviving spouse under s. 861.02 and devises made by will to the surviving spouse are applied first.
  2. Devises other than those described in par. (b) 1. to 3. abate as provided under s. 854.18.
  3. Former spouse. The effect of a transfer under a will to a former spouse is governed by s. 854.15.
     353.11(3m)--(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.
  6. Revival of revoked will.
     1. 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.
     2. 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.
     3. 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 to take effect.
     4. In the absence of an original valid will, establishment of the execution and validity of the revived will or part is governed by s. 856.17.
• 853.13 Contracts.
  (1) 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:
  1. Provisions of a will stating the material provisions of the contract.
  2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
  3. A valid written contract, including a marital property agreement under s. 766.58 (3) (e).
  4. Clear and convincing extrinsic evidence.
  (2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

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