2010 Wisconsin Code
Chapter 853. Wills.
853.01 Capacity to make or revoke a will.

853.01

SUBCHAPTER I
GENERAL RULES
853.01 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 - ANNOT.

When the proponent, a confidant of the decedent and the sole beneficiary, actively participated in the procurement, drafting, and execution of the will under highly suspicious circumstances, a presumption of undue influence was raised. In re Estate of Malnar, 73 Wis. 2d 192, 243 N.W.2d 435 (1976).

853.01 - ANNOT.

The "disposition to influence" element of the 4-factor test of undue influence means a willingness to do something wrong or unfair to obtain a share of an estate. The mere fact that a will benefits an alleged influencer does not prove the "coveted-result" element of the test. Elements of testamentary capacity are discussed. In Matter of Estate of Becker, 76 Wis. 2d 336, 251 N.W.2d 431 (1977).

853.01 - ANNOT.

The 4-element test to prove undue influence requires showing: 1) susceptibility to undue influence; 2) opportunity to influence; 3) disposition to influence; and 4) coveted result. Alternatively undue influence may be proved under a two prong test by showing: 1) the existence of a confidential relationship between the testator and favored beneficiary; and 2) suspicious circumstances surrounding making the will. In re Estate of Kamesar, 81 Wis. 2d 151, 259 N.W.2d 733 (1977). See also In re Estate of Taylor, 81 Wis. 2d 687, 260 N.W.2d 803 (1977).

853.01 - ANNOT.

An insane delusion cannot be a ground for disallowance of a will unless it is shown that the delusion materially affected the disposition embodied in the will. In re Estate of Evans, 83 Wis. 2d 259, 265 N.W.2d 529 (1978).

853.01 - ANNOT.

A legal guardianship, in and of itself, does not prove lack of testamentary capacity. In Matter of Estate of Sorensen, 87 Wis. 2d 339, 274 N.W.2d 694 (1979).

853.01 - ANNOT.

Parent-child relationships as a "confidential relationship" under the 2-prong test for undue influence are different than relationships with nonrelatives. In Matter of Estate of Sensenbrenner, 89 Wis. 2d 677, 278 N.W.2d 887 (1979).

853.01 - ANNOT.

A third party, unnamed in a will, has no standing and may not maintain a negligence action against the drafting attorney although extrinsic evidence of the testator's intent is available. Beauchamp v. Kemmeter, 2001 WI App 5, 240 Wis. 2d 733, 625 N.W.2d 297, 00-0470.

853.01 - ANNOT.

The objector must prove lack of testamentary capacity by clear, convincing, and satisfactory evidence. In re Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, 01-1132.

853.01 - ANNOT.

There is no right to a jury trial in a will contest. In re Estate of Sharpley, 2002 WI App 201, 257 Wis. 2d. 152, 653 N.W.2d 124, 01-2167.

853.01 - ANNOT.

Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.

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