Chapter 853

853.12 History History: 2005 a. 216 s. 75; 2009 a. 28.

853.13 853.13 Contracts.

853.13(1) (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:

853.13(1)(a) (a) Provisions of a will stating the material provisions of the contract.

853.13(1)(b) (b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

853.13(1)(c) (c) A valid written contract, including a marital property agreement under s. 766.58 (3) (e).

853.13(1)(d) (d) Clear and convincing extrinsic evidence.

853.13(2) (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.

853.13 History History: 1995 a. 225; 1997 a. 188.

853.13 Annotation The existence of an irrevocable contract does not prevent the making of a later will or its admission to probate. The remedy is an action in equity to enforce the contract. Estate of Schultz, 53 Wis. 2d 643, 193 N.W.2d 655 (1972).

853.13 Annotation Whether clear and convincing evidence of a contract exists is a fact to be found by the trial court and given deference by an appellate court. Estate of Czerniejewski, 185 Wis. 2d 892, 619 N.W.2d 702 (Ct. App. 1994).

853.13 Note NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to this section.

853.13 Annotation Joint and mutual wills. Kroncke, 43 WBB, No. 5.

853.13 Annotation Contracts to make joint or mutual wills. O’Donnell, 55 MLR 103.

853.15 853.15 Equitable election if will attempts to dispose of property belonging to beneficiary.

853.15(1) (1) Necessity for election.

853.15(1)(a) (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.

853.15(1)(b) (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.

853.15(1)(c) (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.

853.15(2) (2) Procedure for election. If an election is required under sub. (1), the following provisions apply:

853.15(2)(a) (a) The 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.

853.15(2)(b) (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.

853.15(2)(c) (c) Except as provided above, participation in the administration by the beneficiary does not constitute an election to take under the will.

853.15 History History: 1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1993 a. 486; 1997 a. 188.

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

853.17(1) (1) 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(2) (2) This section does not prevent the court from requiring the contract beneficiary to elect under s. 853.15 in order to take property under the will.

853.17 History History: 2013 a. 92.

853.18 853.18 Designation of beneficiary, payee or owner.

853.18(1) (1) Except as otherwise provided in s. 853.15 or 853.17 (1) or ch. 766, none of the following is subject to or defeated or impaired by any statute or rule of law governing the transfer of property by will, gift, or intestacy, even though the designation or assignment is revocable or the rights of the beneficiary, payee, owner, or assignee are otherwise subject to defeasance:

853.18(1)(a) (a) A written designation in accordance with the terms of any insurance, annuity, or endowment contract.

853.18(1)(b) (b) Any agreement issued or entered into by an insurance company supplemental to or in settlement of any insurance, annuity, or endowment contract.

853.18(1)(c) (c) Any written designation made under a contract, plan, system, or trust providing for pension, retirement, deferred compensation, stock bonus, profit-sharing, or death benefits, or an employment or commission contract, of any person to be a beneficiary, payee, or owner of any right, title, or interest thereunder upon the death of another, or any assignment of rights under any of the foregoing.

853.18(1)(d) (d) Directions provided in an online tool, as defined in s. 711.03 (18).

853.18(2) (2) This section applies to such designations or assignments made either before or after June 25, 1969, by persons who die on or after that date. This section creates no implication of invalidity as to any designation or assignment, of the nature described in sub. (1), made by any person who dies before that date or as to any declaration, agreement or contract for the payment of money or other transfer of property at death not specified under sub. (1).

853.18 History History: 1983 a. 186; 2005 a. 216; 2015 a. 300.

853.18 Annotation The phrase “statute governing the transfer of property by will” in sub. (1) refers to statutes establishing formalities for the execution of a valid will. In Matter of Estate of Habelman, 145 Wis. 2d 228, 426 N.W.2d 363 (Ct. App. 1988).

853.19 853.19 Advancement. The effect of a lifetime gift by the testator on the rights of a beneficiary under the will is governed by s. 854.09.

853.19 History History: 1993 a. 486; 1997 a. 188.

853.25 853.25 Unintentional failure to provide for issue of testator.

853.25(1) (1) Children born or adopted after making of the will.

853.25(1)(a) (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:

853.25(1)(a)1. 1. It appears from the will or from other evidence that the omission was intentional.

853.25(1)(a)2. 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.

853.25(1)(b) (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.

853.25(1)(c) (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 testator’s estate as follows:

853.25(1)(c)1. 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.

853.25(1)(c)2. 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.

853.25(1)(c)3. 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.

853.25(1)(c)4. 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.

853.25(1)(d) (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.

853.25(2) (2) Living issue omitted by mistake.

853.25(2)(a) (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:

853.25(2)(a)1. 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.

853.25(2)(a)2. 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.

853.25(2)(b) (b) Failure to mention a child or issue in the will is not in itself evidence of mistake or accident.

853.25(3) (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.

853.25(4) (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:

853.25(4)(a) (a) First, from intestate property.

853.25(4)(b) (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.

853.25(5) (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 History History: 1993 a. 486; 1997 a. 188; 2005 a. 216.

853.27 853.27 Lapse. The rights under a will of a beneficiary who predeceases the testator are governed by s. 854.06.

853.27 History History: 1993 a. 486; 1997 a. 188.

853.27 Annotation A will clause providing that if any beneficiary dies within 5 months of the testator, the deceased beneficiary’s share is to be treated as if the beneficiary predeceased the testator, served to pass a deceased beneficiary’s share to her children under the anti-lapse statute. Firehammer v. Marchant, 224 Wis. 2d 673, 591 N.W.2d 898 (Ct. App. 1999), 98-0586.

853.29 853.29 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 History History: 1993 a. 486; 1997 a. 188.

853.31 853.31 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.

853.32 853.32 Effect of reference to another document.

853.32(1) (1) Incorporation.

853.32(1)(am) (am) A will may incorporate by reference another writing or document if all of the following apply:

853.32(1)(am)1. 1. The will, either expressly or as construed from extrinsic evidence, manifests an intent to incorporate the other writing or document.

853.32(1)(am)2. 2. The other writing or document was in existence when the will was executed.

853.32(1)(am)3. 3. The other writing or document is sufficiently described in the will to permit identification with reasonable certainty.

853.32(1)(am)4. 4. The will was executed in compliance with s. 853.03 or 853.05.

853.32(1)(bm) (bm) A writing or document is incorporated into a will under par. (am) even if the writing or document is not executed in compliance with s. 853.03 or 853.05.

853.32(2) (2) Disposition of tangible personal property and digital property.

853.32(2)(a) (a)

853.32(2)(a)1. 1. A reference in a will 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. The court may enforce a document that is not dated but that fulfills all of the other requirements under this paragraph.

853.32(2)(a)2. 2. A reference in a will to another document that lists digital property, as defined in s. 711.03 (10), not otherwise specifically disposed of in the will disposes of that digital property if the other document describes the digital property and the distributees with reasonable certainty and is signed and dated by the decedent. The court may enforce a document that is not dated but that fulfills all of the other requirements under this paragraph.

853.32(2)(am) (am) Another document under par. (a) is valid if it was signed in compliance with s. 853.03 (1) or with the law of the place where the document was signed, or where the testator resided, was domiciled, or was a national at the time the document was signed or at the time of death, even if it was not otherwise executed in compliance with s. 853.03 (2) or 853.05.

853.32(2)(b) (b) Another document under par. (a) is valid even if any of the following applies:

853.32(2)(b)1. 1. The document does not exist when the will is executed.

853.32(2)(b)2. 2. The document is changed after the will is executed.

853.32(2)(b)3. 3. The document has no significance except for its effect on the disposition of property by the will.

853.32(2)(c) (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.

853.32(2)(d) (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.

853.32(2)(e) (e) Beneficiaries under a document that is described in par. (a) are not interested parties for purposes of s. 879.03.

853.32(3) (3) Transfers to trusts. The validity and implementation of a will provision that purports to transfer or appoint property to a trust are governed by s. 701.0419.