Chapter 891

891.09 History History: Sup. Ct. Order, 59 Wis. 2d R6 (1973); 1993 a. 27, 486; 2017 a. 334.

891.10 891.10 Village records. The papers, documents and orders relating to the organization and incorporation or the alteration of the boundaries of any village, being recorded in the office of the proper register of deeds pursuant to law, and such record and also the record thereof in the office of the village clerk shall be received as presumptive evidence of the facts therein stated.

891.11 891.11 County records as to taxation.

891.11(1) (1) All books and files in the office of any county treasurer or county clerk, all assessments and tax rolls and certificates, all notices required to be published or posted by the county treasurer or county clerk, and the proofs of publication or posting filed in the office of either, pursuant to any law relating to the assessment or collection of taxes or to lands included in a tax certificate under s. 74.57, shall be received as presumptive evidence of the facts therein stated.

891.11(2) (2) A transcript of so much of said books, files and records, as relates to the assessment or sale for taxes of any parcel of land in any specified year or years shall be received in evidence with the same effect as the originals and as presumptive evidence of the facts stated in such certificate, when certified in substantially the following form:

I hereby certify that the annexed and foregoing is a true and correct transcript of all books, records, papers, files and proceedings of every name and nature on file or of record in my office relating in any wise to the assessment of taxes upon or to the sale for taxes of the following described lands .... situated in the county of ...., state of Wisconsin, for the year (or years) A.D. ...., and of the whole thereof. In testimony whereof I have hereunto set my hand this .... day of ...., A.D. .....

County Clerk (or Treasurer) of .... County.

891.11 History History: 1987 a. 378.

891.12 891.12 Land office receipt. The receiver’s receipt or certificate of purchase of public lands, signed by the receiver, and the official certificate of any register or receiver of the entry or purchase of any land or the location of any land by any land warrant shall be received, when held by the original claimant, or the original claimant’s heirs or assigns, as presumptive evidence that the title to the lands therein described passed to and is vested in the person therein named, or the named person’s heirs or assigns, except when, at the time of such entry or purchase, the land was owned or occupied by any person as mineral ground on which discoveries of mineral ores had been made.

891.12 History History: 1993 a. 486.

891.14 891.14 State land office certification of title. A certificate of the executive secretary of the board of commissioners of public lands, or any one of the commissioners of the public lands shall be received as presumptive evidence of the facts stated, and that the person named became vested at the date stated with an absolute title in fee to the lands described when it is substantially in the following form:

Office of the Commissioners of the Public Lands, Madison, Wis., ...., A.D. .....

I hereby certify that from the books, files and records of the office of the commissioners of public lands it appears that on the .... day of ...., A.D. ...., the following described real estate, situate in the state of Wisconsin, .... was duly transferred by the United States to the state of Wisconsin, and that on the .... day of ...., A.D. ...., the above described real estate was duly transferred by the state of Wisconsin to .....

In witness whereof, I have hereunto set my hand and affixed the official seal of the commissioners of the public lands this .... day of ...., A.D. .....

.... ....

891.14 History History: 1971 c. 164; 1975 c. 41 s. 51; 1993 a. 16.

891.16 891.16 Certificate of land transfers. A certificate by the secretary of state, under the great or lesser seal, to any facts which appear from the books, files and records in the secretary of state’s office or the office of the commissioners of public lands in regard to the grant, conveyance or transfer of any land by the United States to the territory or state of Wisconsin, and also in regard to the sale, conveyance or transfer of any such land by said territory or state shall be received as presumptive evidence of the facts so certified.

891.16 History History: 1993 a. 486.

891.17 891.17 Certificate of adjutant general. A certificate by the adjutant general to any facts which appear from the books, files and records in the adjutant general’s office shall be received as presumptive evidence of the facts so certified.

891.17 History History: 1993 a. 486.

891.18 891.18 Affidavits of service. Whenever any notice or other writing is by law authorized or required to be served the affidavit of the person serving it, setting forth the facts necessary to show that it was duly served, shall be presumptive proof that such notice or writing was duly served. But this section shall not apply to any service where another way of proving such service is expressly prescribed by law.

891.18 Annotation When the affidavit of service did not identify the person served as one specified in s. 801.11 (5) (a), no presumption of due service was raised. Danielson v. Brody Seating Co., 71 Wis. 2d 424, 238 N.W.2d 531 (1976).

891.20 891.20 Articles of incorporation, presumptions. Except as provided in s. 180.0203 (2), any charter or patent of incorporation which shall have been issued by the governor, secretary of state or department of financial institutions, or by any combination, to any corporation under any law of the state; any certificate of organization or association of any corporation or joint stock company; the articles of organization of a limited liability company; the articles of association or organization of any corporation, or a certified copy thereof, which shall have been filed or recorded in the office of the secretary of state or with the department of financial institutions, or recorded in the office of any register of deeds or filed or recorded in the office of any clerk of the circuit court under any law of the state; any certificate or resolution for the purpose of amendment, and every amendment in any form, of the charter, patent, certificate or articles of association or organization or of the name, corporate powers or purposes of any corporation or limited liability company, filed or recorded in any of the departments or offices and a certified copy of any such document so filed or recorded shall be received as conclusive evidence of the existence of the corporation, limited liability company or joint stock company mentioned therein, or of the due amendment of the charter, patent, certificate or articles of association or organization thereof in all cases where such facts are only collaterally involved; and as presumptive evidence thereof and of the facts therein stated in all other cases.

891.20 History History: 1993 a. 112, 301, 491; 1995 a. 27, 400.

891.21 891.21 Affidavit of notice of corporate meeting. Whenever any corporation or limited liability company notice is given, posted or served, an affidavit of the person who gave, posted or served the same, specifying the manner and time of doing so, annexed to a copy of such notice, may be filed with the clerk or secretary of the corporation or limited liability company, and when so filed, the original or certified copies thereof, shall be presumptive evidence in all cases of the facts contained in such affidavit.

891.21 History History: 1993 a. 112.

891.22 891.22 Certificate of insurance assessment. Whenever an action is brought by any mutual insurance company to collect any assessment, the certificate of the secretary of said company, specifying such assessment, the amount due said company by means thereof, and that notice thereof was given the person liable therefor, shall be received as presumptive evidence of the facts so certified.

891.23 891.23 Copies of insurance books.

891.23(1) (1) Copies of the entries in the books of any life or mutual benefit insurance corporation or association engaged in doing business on the level premium or assessment plan, together with statements verified by the custodian of the books, showing the number of members insured in or belonging to the corporation or association, and the number of members in each class or grade thereof, and the aggregate amount that would be due from them upon a single assessment, and that the copies are true and are taken from the regular books of the corporation or association used and kept for the transaction of its business, and that the books are now in his or her custody or under his or her control, shall be received in all proceedings as prima facie evidence of the entries or statements.

891.23(2) (2) No officer of any corporation or association described in sub. (1) may be compelled to produce any books or records of the corporation or association, except by special order of the court or officer before whom the action or proceeding is pending. Verified copies and statements shall be furnished to the attorney who reasonably requires them, at least 6 days before the time set for the trial or hearing of the action or proceeding, and the books and records shall be subject to the inspection of any interested party or his or her attorney to the extent prescribed by the court or officer.

891.23 History History: 1977 c. 449; 1999 a. 85.

891.24 891.24 Evidence from financial institution books. Whenever any bank, credit union, savings bank or savings and loan association or any of its officers are subpoenaed to produce its books containing a specified account or other specified entries, the bank, credit union, savings bank or savings and loan association may, if it so elects, produce a copy of the specified account or other entries, verified under oath by one of its officers, stating that the books called for are the ordinary books of the bank, credit union, savings bank or savings and loan association used in the transaction of its business, that the entries copied were made therein at the dates thereof and in the usual course of business, that there are no interlineations or erasures in or among the items copied, that the books are in the custody or control of the bank, credit union, savings bank or savings and loan association, and that the officer has carefully compared the copy with the books and found it to be a correct copy of the specified account or entries. Such verified copy shall be prima facie evidence of such entries, and, when presented, no officer of the financial institution may be compelled to produce the books demanded or attend the trial or hearing, unless specially ordered so to do by the court or officer before whom it is pending; provided, that such books shall be open to the inspection of all parties to the action or proceeding.

891.24 History History: 1979 c. 88; 1991 a. 221.

891.24 Annotation Affidavits verifying nontestimonial bank records in compliance with this section are also nontestimonial and their admission does not violate the confrontation clause. The affidavits fulfill a statutory procedure for verifying nontestimonial bank records and do not supply substantive evidence of guilt. State v. Doss, 2008 WI 93, 312 Wis. 2d 570, 754 N.W.2d 150, 06-2254.

891.24 Annotation The language requiring bank books to be made open to the inspection of parties does not require prior notice of their use at trial to be given. It requires that the books be open to the inspection of all parties to the action or proceeding. State v. Doss, 2008 WI 93, 312 Wis. 2d 570, 754 N.W.2d 150, 06-2254.

891.25 891.25 Presumptions as to signatures. When any written instrument constitutes the subject of the action or proceeding or when the signing of such instrument is put in issue and the instrument purports to have been signed, the instrument itself is proof that it was signed until denied by the oath or affidavit of the person by whom it purports to have been signed or by a pleading. This section does not extend to an instrument purporting to have been signed by a person who died before proof is required.

891.25 History History: Sup. Ct. Order, 67 Wis. 2d 585, 769 (1975).

891.27 891.27 Effect of seal. A seal upon an executory instrument shall be received as only presumptive evidence of a sufficient consideration.

891.28 891.28 Area of towns and counties. Whenever the total area of towns or counties shall be in question, townships not returned as fractional by the surveys under which the public lands were sold by the United States, shall be held to be 6 miles square; and townships returned as fractional shall be held to contain the areas shown by such surveys or the plats thereof.

891.29 891.29 Allegations of partnership. Whenever in any action or proceeding a party shall allege in pleadings that named persons were partners at any particular time, or that as such partners they used any particular partnership name or style under which business was done, such averments shall be taken to be true unless expressly denied by the affidavit of the opposite party or someone in the opposite party’s behalf or by the opposite party’s pleading, within the usual time of pleading.

891.29 History History: Sup. Ct. Order, 67 Wis. 2d 585, 769 (1975); 1975 c. 218; 1993 a. 490.

891.30 891.30 Joint liability. In actions or proceedings upon written contracts alleged to have been executed by the defendants, proof of the joint liability of the defendants shall not be required to entitle the plaintiff to judgment unless such execution is denied by an answer.

891.30 History History: Sup. Ct. Order, 67 Wis. 2d 585, 769 (1975).

891.31 891.31 Corporate existence. In an action or proceeding by or against any corporation or limited liability company, it shall not be necessary to prove the existence of such corporation or limited liability company unless its existence is specially denied by an answer.

891.31 History History: Sup. Ct. Order, 67 Wis. 2d 585, 769 (1975); 1993 a. 112.

891.32 891.32 Allegation as to representative capacity. Whenever a plaintiff sues as a personal representative, guardian, or trustee and alleges in the complaint appointment to that position and, if the appointment was made in another state or a foreign country, the filing or recording of the authenticated copy of the appointment as required by the laws of this state, those allegations shall be taken as true unless specifically denied in the defendant’s answer.

891.32 History History: Sup. Ct. Order, 67 Wis. 2d 585, 769 (1975); 1975 c. 218; 2001 a. 102.

891.33 891.33 Proof of malice in slander and libel. If the defendant in any action for slander or libel shall set up in the defendant’s answer that the words spoken or published were true, such answer shall not be proof of the malice alleged in the complaint.

891.33 History History: 1993 a. 486.

891.34 891.34 Presumption as to citizenship. Whenever in any proceeding to test the qualifications of any person to hold office the question of the citizenship of said person is raised, the burden of proof as to such citizenship shall be upon the person whose qualifications are contested.

891.345 891.345 Establishment of citizenship. Upon petition and proper showing made, that naturalization papers, or written records thereof, have been lost or destroyed, the circuit court of the county in which the petitioner resides may make an order that the petitioner is a citizen of the United States. Any such order or certified copy thereof shall be prima facie evidence of such citizenship.

891.35 891.35 Execution of official bond. In every action upon any official bond the original bond or a certified copy thereof shall be presumptive evidence of the due execution thereof by the officer and the officer’s sureties.

891.35 History History: 1993 a. 486.

891.36 891.36 Evidence of title to realty. In all criminal proceedings in which it is necessary for the state to prove that any person owns or has an interest in any real estate, a conveyance to such person of such real estate or an interest therein, so executed and acknowledged or proved as to be entitled to record, or the record of such conveyance or a certified copy of such record or such proof of possession as would entitle a plaintiff to recover in an action for trespass shall be received as presumptive evidence that such person owned or had an interest in the real estate in question.

891.37 891.37 Presumption as to officer’s return. The return of a sheriff or constable to any writ shall be presumptive evidence that such return is correct and that the service has been rendered or disbursement made.

891.38 891.38 Officer’s certificate as evidence. The certificate of the sheriff or other proper officer endorsed upon the summons, stating the time when he or she received the same for service, shall be presumptive evidence that he or she did receive the summons for service on the day in such certificate named.

891.38 History History: 1993 a. 486.

891.39 891.39 Presumption as to whether a child is marital or nonmarital; self-crimination; birth certificates.

891.39(1) (1) 

891.39(1)(a) (a) Whenever it is established in an action or proceeding that a child was born to a woman while she was the lawful wife of a specified man, any party asserting in such action or proceeding that the husband was not the father of the child shall have the burden of proving that assertion by a clear and satisfactory preponderance of the evidence. In all such actions or proceedings the husband and the wife are competent to testify as witnesses to the facts. The court or judge in such cases shall appoint a guardian ad litem to appear for and represent the child whose paternity is questioned. Results of a genetic test, as defined in s. 767.001 (1m), showing that a man other than the husband is not excluded as the father of the child and that the statistical probability of the man’s parentage is 99.0 percent or higher constitute a clear and satisfactory preponderance of the evidence of the assertion under this paragraph, even if the husband is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).

891.39(1)(b) (b) In actions affecting the family, in which the question of paternity is raised, and in paternity proceedings, the court, upon being satisfied that the parties to the action are unable to adequately compensate any such guardian ad litem for the guardian ad litem’s services and expenses, shall then make an order specifying the guardian ad litem’s compensation and expenses, which compensation and expenses shall be paid as provided in s. 967.06. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b).

891.39(2) (2) 

891.39(2)(a) (a) The mother of the child shall not be excused or privileged from testifying fully in any action or proceeding mentioned in sub. (1) in which the determination of whether the child is a marital or nonmarital child is involved or in issue, when ordered to testify by a court of record or any judge thereof; but she shall not be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, except for perjury committed in giving the testimony.

891.39(2)(b) (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085.

891.39(3) (3) If any court under this section adjudges a child to be a nonmarital child, the clerk of court shall report the facts to the state registrar, who shall issue a new birth record showing the correct facts as found by the court, and shall dispose of the original, with the court’s report attached under s. 69.15 (3). If the husband is a party to the action and the court makes a finding as to whether or not the husband is the father of the child, such finding shall be conclusive in all other courts of this state.

891.39 History History: 1971 c. 298; 1979 c. 196; 1979 c. 352 s. 39; 1983 a. 447; 1985 a. 315; 1989 a. 122; 1993 a. 16, 486; 1995 a. 27, 225; 1997 a. 191; 2017 a. 334.

891.39 Annotation Discussing the requirement of appointing a guardian ad litem under sub. (1) (a) and s. 767.045 (1) [now s. 767.407 (1)]. Johnson v. Johnson, 157 Wis. 2d 490, 460 N.W.2d 166 (Ct. App. 1990).

891.39 Annotation The court’s power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court-ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02, or a higher rate, when necessary to secure effective counsel. State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).

891.395 891.395 Presumption as to time of conception. In any paternity proceeding, in the absence of a valid birth certificate indicating the birth weight, the mother shall be competent to testify as to the birth weight of the child whose paternity is at issue, and where the child whose paternity is at issue weighed 5 1/2 pounds or more at the time of its birth, the testimony of the mother as to the weight shall be presumptive evidence that the child was a full term child, unless competent evidence to the contrary is presented to the court. The conception of the child shall be presumed to have occurred within a span of time extending from 240 days to 300 days before the date of its birth, unless competent evidence to the contrary is presented to the court.

891.395 History History: 1979 c. 352.

891.395 Annotation When competent medical testimony limited the conceptive period to two weeks, testimony of sexual relations outside that period was inadmissible unless offered by the mother. State ex rel. J.A.S. v. M.E.S., 142 Wis. 2d 300, 418 N.W.2d 32 (Ct. App. 1987).

891.395 Annotation A fact finder can find a date of conception other than the date asserted either by the mother or the putative father. State ex rel. N.A.C. v. W.T.D., 144 Wis. 2d 621, 424 N.W.2d 707 (1988).

891.40 891.40 Artificial insemination.

891.40(1) (1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child shall be the natural father of a child conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and shall file the husband’s consent with the department of health services, where it shall be kept confidential and in a sealed file except as provided in s. 46.03 (7) (bm). However, the physician’s failure to file the consent form does not affect the legal status of father and child. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, may be inspected only upon an order of the court for good cause shown.

891.40(2) (2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is not the natural father of a child conceived, bears no liability for the support of the child and has no parental rights with regard to the child.

891.40 History History: 1979 c. 352; 1983 a. 447; 1995 a. 27 s. 9126 (19); 2007 a. 20 s. 9121 (6) (a).

891.40 Annotation Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation. The surrogacy agreement in this case was enforceable except for the portions of the agreement requiring a voluntary termination of parental rights (TPR). The TPR provisions did not comply with the procedural safeguards set forth in s. 48.41 for a voluntary TPR because the biological mother would not consent to the TPR and there was no legal basis for involuntary termination. The TPR provisions were severable. Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634, 11-2166.

891.40 Annotation The Department of Health Services’s practice before May 2, 2016, of enforcing sub. (1) against female married couples but not different-sex couples was unconstitutional. The department is directed to construe sub. (1) in gender-neutral terms. In particular, the word “husband” in sub. (1) should be construed to mean “spouse.” Torres v. Seemeyer, 207 F. Supp. 3d 905 (2016). See also Pavan v. Smith, 582 U.S. 563, 137 S. Ct. 2075, 198 L. Ed. 2d 636 (2017).

891.40 Annotation Viewpoint: Wisconsin’s Undeveloped Surrogacy Law. Walsh. Wis. Law. Mar. 2012.

891.40 Annotation As I See It: Out of Sync: Assistive Reproductive Technology & Parentage Law. Walsh. Wis. Law. May 2017.

891.405 891.405 Presumption of paternity based on acknowledgment. A man is presumed to be the natural father of a child if he and the mother have acknowledged paternity under s. 69.15 (3) (b) 1. or 3. and no other man is presumed to be the father under s. 891.41 (1).

891.405 History History: 1989 a. 212; 1993 a. 213; 1997 a. 191.

891.407 891.407 Presumption of paternity based on genetic test results. A man is presumed to be the natural father of a child if the man has been conclusively determined from genetic test results to be the father under s. 767.804 and no other man is presumed to be the father under s. 891.405 or 891.41 (1).

891.407 History History: 2019 a. 95.

891.41 891.41 Presumption of paternity based on marriage of the parties.

891.41(1) (1) A man is presumed to be the natural father of a child if any of the following applies:

891.41(1)(a) (a) He and the child’s natural mother are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment or divorce between the parties.

891.41(1)(b) (b) He and the child’s natural mother were married to each other after the child was born but he and the child’s natural mother had a relationship with one another during the period of time within which the child was conceived and no other man has been adjudicated to be the father or presumed to be the father of the child under par. (a).

891.41(2) (2) In a legal action or proceeding, a presumption under sub. (1) is rebutted by results of a genetic test, as defined in s. 767.001 (1m), that show that a man other than the man presumed to be the father under sub. (1) is not excluded as the father of the child and that the statistical probability of the man’s parentage is 99.0 percent or higher, even if the man presumed to be the father under sub. (1) is unavailable to submit to genetic tests, as defined in s. 767.001 (1m).