Mutual Wills Package for Married Couple with Minor Children
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 handwritten 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
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 as provided below
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.
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 outsiden 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
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.
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.
(a) are not interested parties for purposes of s. 879.03.
