Wisconsin Wills Flashcards
Will Validity
In Wisconsin, for a will to be valid and admissible to probate the formal execution requirements must be met. The testator must be at least 18 years old and of sound mind. The entire will must be in writing and signed by the testator (or another person at the testator’s direction and in the testator’s presence). The testator must sign the will in the conscious presence of at least two witnesses, who must then sign within a reasonable time. It is not necessary for the witnesses to know the nature of the instrument at the time of attestation. It is not necessary for the witnesses to know the nature of the instrument at the time of attestation.
Incorporation
In Wisconsin, a will may incorporate by reference another writing or document if all of the following apply: (i) the will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document; (ii) the other writing or document was in existence when the will was executed; (iii) the other writing or document is sufficiently described in the will to permit identification with reasonable certainty; and (iv) the will was properly executed. A writing or document is incorporated into a will even if the writing or document does not satisfy the requirements for executing a valid will.
Ademption
The common law doctrine of ademption has been abolished in Wisconsin with respect to certain specific gifts covered by statute, such as specifically delineated scenarios involving sale, loss, condemnation, or use by a guardian or conservator of property that is the subject of a specific gift. In Wisconsin, a beneficiary of a specific gift is entitled to (1) proceeds of sale,(2) insurance proceeds paid with respect to the gifted property, (3) a condemnation award paid, or (4) proceeds from property that was sold, mortgaged, or otherwise utilized by a guardian or conservator, IF the proceeds were received either within one year of the executing person’s death OR after the executing person’s death.
Interested Witness
In Wisconsin, at least two witnesses must sign the will. The document will not be invalidated if an interested witness signs it. A witness is interested if the will gives a personal and beneficial interest to that person. However, a provision benefiting an interested witness will be purged from the will unless (i) the will is also signed by two disinterested witnesses; (ii) there is sufficient evidence that the testator intended the full transfer; or (iii) the interested witness would have taken under Wisconsin’s intestacy statutes. If an exception does not apply, the interested party takes nothing under the will.
Effect of Divorce
In Wisconsin, a divorce revokes any revocable disposition of property made by the decedent to the former spouse in a will. A divorce does not revoke the disposition if the governing instrument, court order, or contract relating to the division of the decedent’s and former spouse’s property made between them before or after the marriage or the divorce provide otherwise. Provisions revoked by divorce are given effect as if the former spouse and relatives of the former spouse disclaimed the revoked provisions, and the property is distributed to the next eligible taker.
Abatement
Gifts by will are abated when the assets of the estate are insufficient to pay all debts and legacies. If not specified in the will, gifts abate in the following order: (i) intestate property, (ii) residuary bequests, (iii) general bequests, and (iv) specific bequests.
General Legacy
A gift of personal property that the testator intends to be satisfied from the general assets of his estate.
Demonstrative Legacy
Paid from a particular source; it is treated as a specific legacy for abatement purposes to the extent that it can be satisfied, and otherwise as a general legacy
Residual Legacy
Legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied. Within each category, abatement is pro rata.
Revocation
In Wisconsin, a will is revoked in whole or in part by a subsequent will (or codicil) that satisfies the will formalities when there is present intent to revoke the will. If there is no express language of revocation in the subsequent will, the subsequent will revokes a prior will only to the extent of any inconsistent provisions between the two. However, holographic wills and codicils are generally not recognized as valid in Wisconsin.
References to Other Documents
A reference in a will to another document that lists tangible personal property that is not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the individuals who receive the property with reasonable certainty, and it is signed and dated by the decedent. The document is valid even if it (i) did not exist when the will was executed, (ii) was changed after the will was executed, or (iii) has no significance except for its effect on the disposition of property by the will.
Significant Acts
In Wisconsin, a will may dispose of property by reference to acts or events that (i) have significance apart from the acts’ effect on the disposition of property under the will, and (ii) do not occur solely for the purpose of determining the disposition of property under the will. This applies whether the acts or events occur before or after execution of the will or before or after the testator’s death.
Children
References in a will to “children” are deemed to include adopted children. Adopted children are treated as biological children for purposes of inheritance. Additionally, in Wisconsin, a child born to unmarried parents is treated in the same manner as a child born to married parents if (i) the father has been adjudicated the father in a paternity proceeding, (ii) the father has admitted to being the father in open court, or (iii) the father has acknowledged being the father in a signed writing.
Contesting a Will
A will can be contested on the grounds of fraud when directly interested parties (i.e., those who stand to benefit financially) believe that the will does not accurately reflect the actual intent of the testator. Generally, the contest must be brought within six months of the will’s admission to probate.
Fraud in the Inducement
Fraud in the inducement is a knowingly false representation that causes the testator to make a different will than would otherwise have been made. In Wisconsin, the fraud must have been present when the will was executed. The burden of proof is on the contestant to show that the misrepresentation was made by the beneficiary with both the intent to deceive the testator and the purpose of influencing the testamentary disposition. A will that would not have been executed but for the fraud must result.
