2010 Wyoming Statutes
Title 2 - Wills, Decedents' Estates And Probate Code
Chapter 6 - Wills

CHAPTER 6 - WILLS

 

ARTICLE 1 - IN GENERAL

 

2-6-101. Right to make and dispose; exception.

 

Any person of legal age and sound mind may make a will and dispose of all of his property by will except what is sufficient to pay his debts, and subject to the rights of the surviving spouse and children.

 

2-6-102. All property deemed passed; "property" defined.

 

A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will, unless a contrary intention is indicated by the will. "Property", as used in this section, includes both real and personal property, or any interest therein, and means anything that may be the subject of ownership.

 

2-6-103. Property passed may be governed by trust instrument.

 

By a will signed and attested as provided in this article a testator may devise and bequeath real and personal estate to a trustee of a trust which is evidenced by a written instrument in existence when the will is made and which is identified in the will, even though the trust is subject to amendment, modification, revocation or termination. Unless the will provides otherwise the estate so devised and bequeathed is governed by the terms and provisions of the instrument creating the trust including any amendments or modifications in writing made before or after the making of the will and before the death of the testator.

 

2-6-104. Law governing meaning and effect.

 

The meaning and legal effect of a disposition in a will is determined by the law of the state in which the will was executed, unless the will otherwise provides or unless the application of that law is contrary to the public policy of this state otherwise applicable to the disposition.

 

2-6-105. Rules of construction and intention.

 

The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this article apply unless a contrary intention is indicated by the will.

 

2-6-106. Antilapse; deceased devisees; class gifts.

 

If a devisee who is a grandparent or a lineal descendent of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take per stirpes. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

 

2-6-107. Failure of a testamentary provision.

 

(a) Except as provided in W.S. 2-6-106, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.

 

(b) Except as provided in W.S. 2-6-106, if the residue is devised to two (2) or more persons and the share of one (1) of the residuary devisees fails for any reason, his share passes to the residuary devisee, or to other residuary devisees in proportion to their interests in the residue.

 

2-6-108. Specific devise of securities; accessions; nonademption.

 

(a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:

 

(i) As much of the devised securities as are a part of the estate at time of the testator's death;

 

(ii) Any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options;

 

(iii) Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization or other similar action initiated by the entity; and

 

(iv) Any additional securities of the entity owned by the testator as a result of a plan of reinvestment.

 

(b) Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) of this section are not part of the specific devise.

 

2-6-109. Nonademption of specific devises where sold by conservator; exception; rights of specific devisee.

 

(a) If specifically devised property is sold by a conservator, or if a condemnation award or insurance proceeds are paid to a conservator as a result of a condemnation, fire or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award or the insurance proceeds. This subsection does not apply if after the sale, condemnation or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one (1) year. The right of the specific devisee under this subsection is reduced by any right he has under subsection (b) of this section.

 

(b) A specific devisee has the right to the remaining specifically devised property and:

 

(i) Any balance of the purchase price together with any security interest owing from a purchaser to the testator at death by reason of sale of the property;

 

(ii) Any amount of a condemnation award for the taking of the property unpaid at death;

 

(iii) Any proceeds unpaid at death on a fire or casualty insurance on the property; and

 

(iv) Property owned by testator at his death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.

 

2-6-110. Exercise of power of appointment.

 

A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.

 

2-6-111. Nonexoneration.

 

A specific devise passes subject to any mortgage, security, interest or lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

 

2-6-112. Will to be in writing; number and competency of witnesses; signature of testator; subscribing witness not to benefit; exception.

 

Except as provided in the next section, all wills to be valid shall be in writing, or typewritten, witnessed by two (2) competent witnesses and signed by the testator or by some person in his presence and by his express direction. If the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency shall not prevent the probate and allowance of the will. No subscribing witness to any will can derive any benefit therefrom unless there are two (2) disinterested and competent witnesses to the same, but if without a will the witness would be entitled to any portion of the testator's estate, the witness may still receive the portion to the extent and value of the amount devised.

 

2-6-113. Holographic will.

 

A will which does not comply with W.S. 2-6-112 is valid as an holographic will, whether or not witnessed, if it is entirely in the handwriting of the testator and signed by the hand of the testator himself.

 

2-6-114. Self-proving wills.

 

(a) Any will may be simultaneously executed, attested and made self-proven, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate under official seal, in form and content substantially as follows:

 

I, ...., the testator, sign my name to this instrument this .... day of ...., (year), and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am an adult person, of sound mind, and under no constraint or undue influence.

 

Testator....

 

We, ...., ...., the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that he executes it as his free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witnesses to the testator's signature and that to the best of our knowledge the testator is an adult person, of sound mind, and under no constraint or undue influence.

 

Witness .......................

 

Witness .......................

 

STATE OF WYOMING )

 

) ss

 

COUNTY OF -------- )

 

Subscribed, sworn to and acknowledged before me by ...., the testator, and subscribed and sworn to before me by .... and ...., witnesses, this .... day of .... .

 

(SEAL) (Signed) --------------

 

(Official Capacity of Officer)------------

 

(b) The execution of the acknowledgment by the testator and the affidavits of the witnesses as provided for in this section shall be sufficient to satisfy the requirements of the signing of the will by the testator and the witnesses under W.S. 2-6-112.

 

(c) An attested will may at the time of its execution or at any subsequent date be made self-proven by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of this state or under the laws of the state where execution occurs, and evidenced by the officer's certificate under official seal, attached or annexed to the will in form and contents substantially as follows:

 

STATE OF WYOMING )

 

) ss

 

COUNTY OF -------- )

 

We, ...., ...., and ...., the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he signed willingly or willingly directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time an adult person, of sound mind and under no constraint or undue influence.

 

Testator ---------

 

Witness .....................

 

Witness .....................

 

Subscribed, sworn to and acknowledged before me by ...., the testator, and subscribed and sworn to before me by .... and .... witnesses, this .... day of ...., ... .

 

(SEAL) (Signed) -------------

 

(Official Capacity of Officer) -----------

 

2-6-115. Who may witness.

 

Any person generally competent to be a witness may act as a witness to a will.

 

2-6-116. Validity of execution.

 

A written will is valid if executed in compliance with W.S. 2-6-112 or 2-6-113 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.

 

2-6-117. Revocation by writing or by act.

 

(a) A will or any part thereof is revoked:

 

(i) By a subsequent will which revokes the prior will or part expressly or by inconsistence; or

 

(ii) By being burned, torn, cancelled, obliterated or destroyed with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.

 

2-6-118. Revocation by divorce or annulment; effect; revival; other changes excluded.

 

If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.

 

2-6-119. Duty of custodian to deliver will; failure to comply; order to third persons.

 

(a) Every custodian of a will, within ten (10) days after receipt of information that the maker thereof is dead, shall deliver the same to the clerk of the district court having jurisdiction of the estate or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by anyone injured thereby.

 

(b) If it is brought to the attention of the court that any will is in the possession of a third person, and the court or the commissioner in vacation is satisfied that the information is correct, an order shall be issued and served upon the person having possession of the will, and if he neglects or refuses to produce it in obedience to the order he may be punished by the court for contempt.

 

2-6-120. Notification of executor; disposition where no petition filed.

 

Upon receipt of a will for filing, with information that the maker thereof is dead, the clerk shall notify the party, if any, named as executor of the will, and as many of the distributees named therein as may be readily located. If no action pursuant to W.S. 2-6-121, 2-6-122 or 2-6-201 is taken by any party within thirty (30) days after the giving of such notice, the clerk shall report the matter to the court and the court may make orders as it deems appropriate for the disposition of the will.

 

2-6-121. Petition and procedure for filing of will without probate or administration.

 

(a) Concurrently with the filing with the clerk of a will of a deceased person, or at any time thereafter, the executor or any distributee named therein may file a sworn petition for filing of the will without probate or administration. The petition shall show:

 

(i) The date and place of death of the decedent, and county and state of last residence of the decedent;

 

(ii) The names, ages and residences of the heirs and devisees of the decedent, so far as known to the petitioner;

 

(iii) That a true copy of the will and a true copy of the petition have been mailed to each of the heirs and devisees; and

 

(iv) That, pending possible subsequent action, the petition and the will are to be filed and indexed by the clerk, without further proceedings.

 

(b) The clerk shall receive, file and index the petition, and annex the will thereto, and maintain same as part of the permanent files. No filing fee shall be charged.

 

(c) No proceedings under this section may be commenced after the filing of a petition under W.S. 2-6-122 or 2-6-201, nor after the entry of an order by the court pursuant to W.S. 2-6-120 making other provisions for the disposition of the will.

 

2-6-122. Petition and procedure for filing and probate of will without administration.

 

(a) Concurrently with the filing with the clerk of a will of a deceased person, or at any time thereafter prior to the filing of a petition pursuant to W.S. 2-6-201 and prior to the entry of any order by the court pursuant to W.S. 2-6-120 making other provisions for the disposition of the will, any party who would be entitled to letters testamentary under the provisions of W.S. 2-6-208 may file with the clerk a sworn petition for probate of will without administration. The petition shall show:

 

(i) The date and place of death of the decedent, and county and state of last residence of the decedent;

 

(ii) The names, ages and residences of the heirs and devisees of the decedent;

 

(iii) That a true copy of the will and a true copy of the petition have been mailed to each of the heirs and devisees; and

 

(iv) That the petition prays for probate of the will, without administration.

 

(b) A filing fee for the petition shall be charged, equal to the minimum fee applicable to proceedings under W.S. 2-6-203.

 

(c) Upon the filing of the petition, proceedings shall be had as provided in W.S. 2-6-203 through 2-6-206, and order shall issue and notices be given as provided in W.S. 2-6-209 if the will is found entitled to probate, except that the order shall not include the appointment of an executor, but recite that the will is admitted to probate without administration.

 

(d) After the entry of the order admitting the will to probate, the petitioner shall, at his own expense, cause to be published once a week for three (3) consecutive weeks in a daily or weekly newspaper of general circulation in the county in which the probate was granted a notice in substantially the following form:

 

State of Wyoming ) In the District Court

 

) ....Judicial District

 

County of.... ) Probate No. ....

 

In the Matter of the ) Notice of Proof of

 

Estate of-------------- ) Will Without

 

Administration

 

......., Deceased. )

 

TO ALL PERSONS INTERESTED IN SAID ESTATE:

 

You are hereby notified that on the .... day of ...., (year), the Last Will and Testament of Decedent was admitted to probate by the above named court and there will be no present administration of the estate. Any action to set aside the Will shall be filed in the Court within three (3) months from the date of the first publication of this notice, or thereafter be forever barred.

 

Dated ...., (year).

 

Proponent .............

 

PUBLISH: (once a week for three (3) consecutive weeks)

 

(e) The provisions of W.S. 2-6-301 through 2-6-306 apply to proceedings under this section.

 

(f) In the event administration of the estate is desired at any later date, any party designated in W.S. 2-6-208, in the order of preference set forth therein, may petition the court for the issuance of letters testamentary.

 

2-6-123. Filing of will, with or without probate not to bar collection by affidavit.

 

No proceedings pursuant to W.S. 2-6-120 through 2-6-122 shall bar any proceedings pursuant to W.S. 2-1-201 through 2-1-203.

 

2-6-124. Written statement referred to in will disposing of certain personal property.

 

(a) A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing shall:

 

(i) Be dated;

 

(ii) Be in the handwriting of the testator or signed by him; and

 

(iii) Include a description of the items and devisees with reasonable certainty.

 

(b) The written statement or list may be prepared before or after execution of the will, and may be altered by the testator after its preparation which alteration shall be signed and dated by the testator.

 

(c) The written statement or list may be a writing which has no significance apart from the effect upon the disposition made by the will.

 

ARTICLE 2 - PROCEDURE FOR PROBATE

 

2-6-201. Contents of petition; defect in jurisdictional statement inconsequential.

 

(a) A petition for the probate of a will shall show:

 

(i) The jurisdictional facts;

 

(ii) Whether the person named as executor consents to act, or renounces his right to letters testamentary;

 

(iii) The names, ages and residences of the heirs and devisees of the decedent, so far as known to the petitioner;

 

(iv) The probable value and character of the property of the estate;

 

(v) The name of the person for whom letters testamentary are prayed.

 

(b) No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will.

 

2-6-202. Failure of executor to petition; appointment of administrator.

 

If the person named in a will as executor, for thirty (30) days after he has knowledge of the death of the testator and that he is named as executor, fails to petition the proper court for probate of the will and that letters testamentary be issued to him, he may be held to have renounced his right to letters and the court may appoint any other competent person administrator unless good cause for delay is shown.

 

2-6-203. Hearing upon petition; notice not required.

 

(a) Upon the filing of a petition for probate of a will, the court or the clerk may hear it forthwith or at such time and place as the court or clerk may direct, with or without requiring notice, and upon proof of due execution of the will, admit the same to probate.

 

(b) Notice is not required and there shall be no delay in the hearing, unless good cause appears.

 

2-6-204. Proof; self-proving will.

 

A will executed in compliance with W.S. 2-6-114 shall be probated without further proof.

 

2-6-205. Proof; wills not self-proving.

 

(a) If the will is not self-proving, proof of a will may be made by the oral or written testimony of one or more of the subscribing witnesses to the will. If the testimony is in writing, it shall be substantially in the following form, executed and sworn to contemporaneously with the execution of the will or at any time thereafter, whether before or after the date of death of the testator:

 

In the District Court of Wyoming

 

In and for .................... County

 

In the Matter of the Estate of) Probate No. ....

 

.... Deceased ) Testimony of Subscribing

 

State of .... )ss Witness on Probate of Will

 

.... County )

 

I, ...., being first duly sworn, state:

 

I reside in the County of ...., State of ....; I knew the testator on the ... day of ..., (year), the date of the instrument, the original or exact reproduction of which is attached hereto, now shown to me, and purporting to be the last will and testament of the said ....; I am one of the subscribing witnesses to said instrument; and on the said date of said instrument, I knew ...., the other subscribing witness; and said instrument was exhibited to me and to the other subscribing witness by the testator, who declared the same to be his last will and testament, and was signed by the testator at ...., in the County of ...., State of ...., on the date shown in said instrument, in the presence of myself and the other subscribing witness; and the other subscribing witness and I then and there, at the request of the testator, in the presence of said testator and in the presence of each other, subscribed our names thereto as witnesses.

 

Name of witness ....

 

Address ....

 

Subscribed and sworn to before me this .... day of...., (year).

 

Notary Public in and for ....

 

County of ....

 

State of ....

 

(SEAL)

 

(b) If it is desired to prove the execution of the will by deposition rather than by use of the affidavit form provided in subsection (a) of this section, upon application the clerk shall issue a commission to some officer authorized by the law of this state to take depositions, with the will annexed, and the officer taking the deposition shall exhibit it to the witness for identification, and, when identified by him, shall mark it as "Exhibit ...." and cause the witness to connect his identification with it as such exhibit. Before sending out the commission the clerk shall make and retain in his office a true copy of the will.

 

(c) If all of the witnesses are deceased or otherwise not available, it is permissible to prove the will by the sworn testimony of two (2) credible disinterested witnesses that the signature to the will is in the handwriting of the person whose will it purports to be, and that the signatures of the witnesses are in the handwriting of the witnesses, or it may be proved by other sufficient evidence of the execution of the will.

 

2-6-206. Proof; holographic wills.

 

An holographic will may be proved the same as any other private writing.

 

2-6-207. Proof; lost or destroyed will; court may restrain personal representatives pending disposition.

 

(a) Whenever any will is lost or destroyed, the district court shall take proof of the execution and validity thereof to establish the same. All the testimony shall be reduced to writing and signed by the witnesses.

 

(b) No will shall be proved as a lost or destroyed will unless it is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses.

 

(c) When a lost will is established, the provisions thereof shall be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate shall be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, shall be issued thereon in the same manner as upon wills produced and duly proved.

 

(d) If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator or letters testamentary of any previous will of the testator are granted, the court may restrain the personal representatives so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.

 

2-6-208. Order of preference for appointment of executor.

 

(a) Letters testamentary may be granted to one or more persons found to be qualified. Preference for appointment shall be in the following order:

 

(i) The person designated in the will;

 

(ii) Any beneficiary named in the will, or a person nominated by the beneficiaries;

 

(iii) Any creditor of the decedent, or a person nominated by such creditor;

 

(iv) Such other person as the court may find to be qualified.

 

2-6-209. Order admitting or disallowing probate; mailing of copies.

 

The court or the clerk shall enter an order either admitting the will to probate or disallowing probate because of insufficient proof. An order admitting a will to probate shall include the appointment of an executor. The clerk, personal representative or attorney shall transmit by certified mail a copy of the order admitting the will to probate, together with a copy of the will, to each named beneficiary and to each heir of the decedent.

 

2-6-210. Form of letters testamentary.

 

Letters testamentary must be substantially in the following form:

 

State of Wyoming )

 

)ss

 

County of .... )

 

The last will of A. B., deceased, a copy of which is hereto attached, having been proved and recorded in the district court within and for the county of ...., C. D. is hereby appointed executor. Witness, G. H., clerk of the district court of the .... district within and for the county of .... with the seal of the court affixed, the .... day of .... A.D. ....

 

--------------------------------------- Clerk.

 

2-6-211. Authority of executor not designated in will.

 

Executors who are not designated in the will have the same authority over the estates which executors named in the will have.

 

ARTICLE 3 - ACTIONS TO SET ASIDE OR CONTEST

 

2-6-301. Filing and contents of petition to revoke.

 

After a will has been admitted to probate, any person interested may, within the time designated in the notice provided for in W.S. 2-6-122 or 2-7-201, contest the will or the validity of the will. For that purpose he shall file in the court in which the will was proved a petition in writing containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate be revoked.

 

2-6-302. Summons and notification; proceedings governed by civil rules.

 

Upon filing the petition, a summons shall be served upon the executors of the will and the clerk shall send notice by certified mail, with copy of petition attached, to all the legatees and devisees mentioned in the will and all the heirs, so far as known to the petitioner, or to their guardians if any of them are minors, or to their personal representatives if any of them are dead. The summons, service and proceedings shall be governed by the Wyoming Rules of Civil Procedure.

 

2-6-303. Annulment and revocation.

 

If upon trial, the jury, or if no jury, the court decides the will is invalid or that it is not sufficiently proved to be the last will of the testator, the probate shall be annulled and revoked.

 

2-6-304. Cessation of executor's powers; immunity.

 

Upon the revocation being made, the powers of the executor cease, but the executor is not liable for any act done in good faith previous to the revocation.

 

2-6-305. Liability for payment of contest costs.

 

The fees and expenses shall be paid by the party contesting the validity or probate of the will if the will in probate is affirmed. If the probate is revoked, the costs shall be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.

 

2-6-306. When probate deemed conclusive.

 

If no person within the time designated in the notice provided for in W.S. 2-6-122 or 2-7-201 files a petition to contest the will or its validity, the probate of the will is conclusive.