852.13 1944
the decedent, grandchildren do not take by (7) A totally new provision ameliorates the representation). effect of ademption by extinction if specifi Sub. (3) corresponds to the last sentence of cally devised or bequeathed property is sold, 318.27 on value, but with a minor change. condemned or destroyed by fire· or changed Because the probate branch of the county by corporate action. court has complete jurisdiction in Wisconsin (8) The administrative features of deposit over settlement of an estate, 318.29 has been of a will during testator's lifetime are omitted as superfluous. Likewise 318.25 states changed, with provision for discretionary mi such an obvious proposition of the law of crofilming of deposited wills and destruction advancement that it has not been embodied of originals after 25 years. [Bill 5-S] in this section. Omission of these sections is not intended to change the law in any 853.01 History: 1969 c. 339; Stats. 1969 s. respect. 853.01. Technically the property advanced is not Legislative Council Note, 1969: This sec part of the estate for purposes of administra tion replaces 238.01 and 238.05 and lowers tion. It is merely considered for purposes the minimum age for testamentary capacity of computing the shares of the heirs as though to 18 years on a uniform basis. The exist it were p,art of the estate, to be deducted from ing age requirement is 21 with exceptions for the share of the heir to whom the advance a married woman of 18 or older and for any was made. Hence 318.24 has been omitted. minor who is in the military and naval forces. The treatment of the advance is implicit in The reasons for recommending a uniform the wording of the new sub. (1). [Bill 5-S] lower age are as follows: (1) Minors today'are increasingly owners of substantial amounts 852.13 History: 1969 c. 339; Stats. 1969 s. of property. In an era when accumulation of 852.13. wealth was the major means of acquiring an Legislative Council Note, 1969: This sec estate, few, if any, men acquired an estate tion replaces 237.01 (8) and makes no change before they reached 21. Today the tax ad in substance. A slight change in procedure is vantages of inter vivos gifts have induced par made, however. The 180-day period in the ents and grandparents to make. transfers, out existing statute dates from "receiving notice right or in trust, for minors. Trusts created of the death of the intestate"; since there is to comply with IRe s. 2503 (c) must either no official notice sent to the heirs, this intro provide for payment to the minor's estate in duces some uncertainty in the law. This sec event of death before 21 or give the minor a tion dates the 180-day period from the grant testamentary power of appointment (although ing of letters. It also allows the court to ex under existing tax regulations it is not re tend the time for cause shown; this is limited quired that that the minor be able to exer to a reasonable time. The heir who renounces cise the power under state law). (2) Marriage must not only file with the court but also of minors is increasingly frequent. Patterns serve a copy on the personal representative. of marriage and raising a family have The last sentence is new. It is intended to changed drastically. There is more need for a deal with the problem raised in the recent minor to be able to make a will to provide for case Estate of Wettig, 29 Wis. 2d 239, 138 N.W. a changing family situation. (3) Our present 2d 206 (1965). [Bill 5-S] law contains inconsistencies which are nei ther logical nor sound. The exceptions for the CHAPTER 853. married woman of 18 and for a minor in mili tary service can, of course, be rationalized. WILLS. The exception for the married minor woman, Legislative Council Note, 1969: (1) No which is apparently unique to Wisconsin, major changes in execution of wills are con enables her to avoid the intestate laws templated. However, oral (nuncupative) wills which would give the entire estate to her hus are no longer valid. band as heir if there are no children, or to (2) In line with the trend in other states create trusts for children if there are any. But, a uniform minimum age of 18 years is pro the married man under 21 has just as much' vided. need for estate planning as his minor wife. (3) The law of revocation is codified (ex The exception for young men in the military cept for dependent relative revocation). Two forces is an outgrowth of historic accident minor changes are involved: a subsequent and has been attacked as historically un marriage generally revokes a will, and re sound. 21 Mod. L. Rev. 423 (1958). Wiscon vival of a revoked will is permitted under spe sin is one of only six states which lower the cial circumstances. age for soldiers and sailors. Although the (4) The existing statutes providing for a special exception for persons in military serv child born after execution of the will or omit ice can be justified on grounds of the in ted by mistake are modified to give the court creased peril, more minors are killed in au discretion as to the kind and amount of share tomobile accidents than in the performance of the child should receive; and it is no longer military duties. (4) Minors can avoid existing necessary to mention the child in the will in limitations by resorting to legal devices order to prevent an objection to probate. which by-pass probate: insurance, joint bank (5) The provisions on equitable election accounts, government bonds with beneficiary dealing with a will which mistakenly dis designations, etc. (5) With modern public edu poses of nonprobate property (such as joint cation, a young person of 18 ought to have tenancy assets) are clarified. sufficient judgment to make a testamentai'y (6) The burden of establishing that any will disposition. . is made under a contract not to revoke is ex Eighteen states have already recognized tended to joint wills. these changed conditions and set the age of 1945 853.03
18 as the minimum age requirement. This reasonable safeguard for the proxy signature. also is the age adopted in the Model Probate Under this statute the person signing for the Code. testator could be one of the two witnesses. That the capacitr, to revoke a will is the The requirement of sub. (1) (b) is patterned same as the capacIty to make a will is im after Penn. Stat. title 20, s. 180.2 (3). In most plicit in our existing statute and is the ba states such a separate requirement is unnec sis for the last sentence of 238.14 ("The pow essary because every signature by the tes er to make a will implies the power to re tator must be made or acknowledged in the voke the same.") which was added in 1878 to presence of the witnesses. eliminate any possible argument that a mar A signature in which the testator partici ried minor woman could make a will but not pates, as by touching the pen guided by an revoke it. [Bill 5-S] other, is a signature by him. Will of Wilcox, 853.03 History: 1969 c. 339; Stats. 1969 s. 215 Wis. 341, 254 N.W. 529 (1934). Hence such 853.03. a signature would be within sub. (1) (a) and not a proxy signature within sub. (1) (b). Nor Legislative Council Note, 1969: This sec yvould the proposed statute change the exist tion makes no change in the Wisconsin law Ing law that a testator may sign a will by relating to attested wills, with the possible mark or by proxy signature even though he addition of the requirement that the proxy is able to write: Will of Mu<:;ller, 188 Wis. 183, signature of another person for the testator be 205 N.W. 814 (1925) (holdIng what is now in the presence of the witnesses or be ac 990.01 (38) inapplicable to signature for pur knowledge in their presence, and a very minor poses of the wills statute, 238.06). change in the signature of the witnesses, who no longer are required to subscribe but mere .This s~ction abolish~s nuncupative (oral) ly to sign. The section abolishes the use of wIlls entirely. Such WIlls are now permitted oral wills as a permissible method of testa by 238.16-238.17 under very limited circum mentary disposition. s.ta:r:ce~. O.ur existing statu~es, except for the Wisconsin has fewer formalities for execu lImItatIOn In 238.16 (2) WhICh was added in tion of wills than almost any other state. It 1955, were copied from the 1838-39 Terri is not necessary that the testator publish the torial Laws, which in turn were copied from will, i.e., declare the document to be his will the English Statute of Frauds (1677). In Eng in the presence of the witnesses: Allen v. land oral wills were abolished by the Statute Griffin, 69 Wis. 529, 35 N.W. 21 (1887); Estate of Wills in 1837, except for soldiers and sail of Tollefson, 198 Wis. 538, 224 N.W. 739 (1929); ors. Although a number of the states still re Estate of White, 273 Wis. 212, 77 N.W. 2d 404 tain the old provisions regarding nuncupative (1956). Nor is it necessary that the testator wills, 8 states prohibit oral wills and 10 oth either sign in the presence of the witnesses or er states allow oral wills only in the case of acknowledge the signature in their presence: soldiers and sailors. Will of Wnuk, 256 Wis. 360, 41 N.W. 2d 294 The restrictions in the existing statutes are (1950); Estate of McCarthy, 265 Wis. 548, 61 s!lc~ that nu:r:cupative wills have extremely N.W. 2d 819 (1953), or that they even see the limIted effectIveness, anyway. Those restric signature: Will of Johnson, 225 Wis. 140, 273 tions, which originated in the 17th century N.W. 512 (1937). In fact, it is difficult to de make little sense in a modern setting and ar~ termine what the witnesses are attesting in illogical in the distinctions drawn. The a case like Estate of White, above, where courts have demonstrated a hostile policy the testatrix did not sign in the presence of toward oral wills, and all of the appellate the witnesses, nor indicate to them that it was cases in Wisconsin have invalidated such a will she wanted them to sign. Our court has wills on one ground or another. held that "attested" as used in 238.06 is thus The distinctions drawn under the existing synonymous with "subscribed": see Estate of statute cannot be defended on rational White, above, and Skinner v. Am. Bible Soci grounds. An oral will may dispose of a mil ety, 92 Wis. 209, 65 N.W. 1037 (1896). This lion dollars in stocks and bonds to a wife, but statute uses only the word "signed" in sub. not transfer a vacant lot or the home to (2). It is inconsistent to allow the testator to her. A testator may by oral will give his sign any place on the will but to require that wife an unlimited amount of personal proper the witnesses sign at the end. Normally, of ty but may give one of his children no more course, they will subscribe or sign at the than $500. Where the testator takes sick at end of the will. In all cases where a formal home and is moved to a hospital where he attestation clause is part of the will docu makes the oral will while dying, the will is ment, the witnesses are attesting to all facts ineffective; but if he takes sick away from recited therein, including capacity of the home, the will is good. testator as well as matters relating to execu The statutory permission for oral wills is a tion. product of an age of illiteracy, when legal Although normally, where the testator signs services were often not available and people in his own handwriting, the signature need who were not part of the landed aristocracy not be made or acknowledged in the pres did little planning for death. Such wills are ence of the witnesses, no Wisconsin case has obsolete under present conditions. Abolition held that a proxy signature may be made by of the oral will should not result in unsettling another person for the testator outside the expectations. Probably more people mistak presence of the witnesses. Hence the re enly believe that holographic wills are valid quirement of sub. (1) (b) that such a signa than believe oral wills are effective. In ture be made or acknowledged in the pres terms of fraud, there is just as much chance of ence of the witnesses may be the existing fraud in the case of nuncupative wills as with Wisconsin law. In any event, it seems like a holographic wills or written wills attested 853;05 1946
by one witness, neither of which are valid in Legislafive Council Note, 1969: Sub. (1) Wisconsin. makes no change in existing Wisconsin law. The special exception for soldiers' and sail It merely states the obvious rules regarding ors' wills is also obsolete. In the first place, competency. Sub. (2) adopts the general the exception is seldom resorted to, and in the principle of 238.08 and 238.09 but makes some· case of actual war conditions special statutes change in details of application. The lan are . enacted to ease formalities in the execu guage of this section is patterned on the Mod tion of wills (e.g., 235.255 (3) dispensing with el Probate Code s. 46 (s. 3 of the Model Exe witnesses, etc., for written wills of persons cution of Wills Act). The normal result of engaged in World War II). In the second sub. (2) is to invalidate any excess of gifts un Place, the military services today provide le der the will to a witness over the amount g"l sel~vices. for both officers and enlisted which the witness would have taken by intes r,nen an<;l. urge them to execute wills. In the tacy. The alternative would be to invalidate third place, the exception is hedged with the excess over "what the witness would have strict (requirements: the soldier must actually received had the will been disallowed". be engaged in military service during a state The Committee considered and rejected this of w"r, alld the sailor must be at sea. How alternative largely on the grounds of adminis these 17th century requirements fit personnel trative convenience. It would make a differ in supply positions, in the air defense, etc., ence only in the case where testator's last can only lea<;l. to litigation. will, witnessed by a beneficiary and heir, re It should be noted that abolition of nuncu voked a prior will in which the witnessing pative wills would not affect the validity of heir was given less than the intestate share. gifts causa. mortis, which allow transfers of This section eliminates difficulties of com personal property in expectation of death putation which arise where the witness is a when the gift is completed by delivery. [Bill residuary beneficiary under the prior will, as 5~S] . well as the need of establiShing the prior will in order to determine its validity and what 853.05. History: 1969 c. 339; Stats. 1969 s. the witness would have received under it. 853.05. . 238.09 is ambiguous on this problem. Legislative Council Note, 1969: This sec The provision of 238.09 that the beneficiary tion makes only minor changes in the Wis may recover his share of the devisees or le consin law. It retains the existing choice of gatees named in the will has been eliminated. law provisions in general. It does, however, The share saved to the witness or spouse is eliminate nuncupative wills; the existing ex-. out of the provision made in the will itself for ception for such wil1\3 was no doubt intended such witness or spouse, and there is no need to preserve .soldiers' and sailors' oral wills to allow recovery out of the shares of other made outside the state. Thts exception has legatees or devisees. Under some circum been dropped to accord with the recommen stances 238.09 may result in real distortion of dation ,that aIr nuncupative wills be treated the testamentary scheme if the statute is lit as invalid. erally applied. The. existing statute .also contains a proviso Sub. (3) is new. It makes some change in thatwill\3 be in writing "subscribed" by the the existing law. testator; since the only requirement of either Sub. (3) (a) merely codifies existing law. 238.06 or 853.03 for wills executed within the An executor may be a witness under both state is that ~hey be "signed" by the testator our existing statute and this section without personally or> by proxy, the requirement of being beneficially interested. Will of Lyon, subscription has been dropped. This section 96 Wis. 339, 71 N.W. 362 (1897). The same merely requires that the will be in writing would be true of a trustee, an attorney and does not refer to signing by the testator, named in the will to handle the estate, or any in ordEn',to allow the appropriate law to gov~ other person whom the will directs the exe ern as tb proxy signature if the testator does cutor to employ. However, this ceases to be not persdnallysign. However, a nuncupative the case if the will expressly provides for will reduced to writing by any person other special compensation greater than that usual than the testator would not meet the require for the particular services, as where the will ment of a writing. names an executor and gives him a large leg . Another possible choice of law would be acy in payment for his services. The express testator's domicile at time of death, and some provision of 238.08 that a mere charge on wi'iters have advocated that it be an added land for payment of debts does not prevent a choice.. However, since a testator will rely at creditor from being a witness has been the time of execution on either the law of the eliminated as obsolete. This provision dates plaGe ofeJl:ecution or the law of his domicile back to the old Statute of George II (1752) at at that time, there appears to be no need to a time when land was not subject' to claims add this fourth choice. of creditors unless expressly charged by the '. 238.07, applies only to wills executed out will; land is today subject to creditors' side 6f Wisconsin. No such limitation is re claims, and omission of this provision is not tained in this section. This is to permit a non intended to change the law in this regard. resident .visiting in Wisconsin to execute a. Sub. (3) (b) is intended to take care of a willin accordance with the law with which he special problem. It permits a person to act is familiar. Normally this section will have as witness where he would benefit under the its majOl~ incidence on wills executed in an antilapse statute or under an alternative other state or country. [Bill 5-S] gift by' the will if another beneficiary pre deceases the testator. The interest in such a . .B5~.07 'H~story: 1969 c. 339; Stats. 1969 s. case is so contingent that it ought not to dis 853:07:" .' . qualify. [Bill 5-S] 1947 853.11
853.09 Hisfory: 1969 c. 339; Btats. 1969 s. Although .witnesses ~ight be required for 853.09. the destruction of a WIll, the popular notion Legislative Council Note, 1969: This sec ~hat a tes~atevidence that he refened to his the envelope and has discretionary power will as still in force, that others who would after 25 years to microfilm or otherwise re benefit by loss of the will had access or the produce the will and destroy the original. It like. In re Steinke's Will, 95 Wis. 121, 70 N.W. is unlikely that any will on file for more than 61 (1897); Gavitt v. Moulton, 119 Wis. 35 96 25 years will ever be needed for probate. In N.Y'. 395 (1903); Wendt v. Ziegenhagen, '148 counties where storage is not a problem, the WIS. 382, 134 N.W. 905 (1912); Will of Doni register will undoubtedly retain original wills gian, 265 Wis. 147, 60 N.W. 2d 732 (1953). for a much longer period rather than go to When the statute refers to revocation by the expense of microfilming. A slight change physical act to the "will or part", this. in in the provision for withdrawal is reflected in cludes an act done to a duplicate original, but the requirement for two witnesses rather than not to a conformed or unconformed copy. an oath subscribed by one where the testator Will of Donigian, cited above; Will of Wehr has another person withdraw the will for him; 247 Wis. 98, 18 N.W. 2d 709 (1945). ' the opportunity for fraud in such cases is min Under our existing statute, the Supreme imized by the additional witness. [Bill 5-S] Court has held that the testator may not "ratify" loss or destruction of a will under 853.11 Hisfory: 1969 c. 339; Stats. 1969 s. circumstances which do not comply with 853.11. the statutory requirements. Estate of Mur Legislative Council Note, 1969: A will can phy, 217 Wis. 472, 259 N.W. 430 (1935). be revoked by a subsequent writing, by a While sub. (1) might have codified all of physical act to the document itself, or by cer these matters into statutory form, the Com tain subsequent changes in circumstances mittee decided that there was no need to do from which revocation is implied. This sec so in such detail. tion includes all of these methods and in ad Sub. (2) and (3) deal with revocation by dition deals with revival of a revoked will. operation of law and introduce a change in This section makes minor changes in exist existing law. The only provision in our ex ing law and codifies other aspects; it is more isting statutes is found in 238.14, and reads: comprehensive than 238.14. "nothing contained in this section shall pre Sub. (1) is comparable to the first sentence vent the revocation implied by hiw from sub of 238.14 and makes no change in existing law sequent changes in the condition or circum regarding revocation by subsequent writing stances of the testator". The Wisconsin Su or by physical act. A subsequent instru preme Court has hinted that the court has ment operates as a revocation only to the ex power to determine revocation based on this tent that it expressly revokes the will or a section in situations not recognized at com~ part thereof or to the extent that it is incon mon law. Will of Wehr, 247 Wis. 98, 18 N.W. sistent with the will. This leaves to the 2d 709 (1945); Estate of Wilkins, 192 Wis. 111 court problems of interpretation where the 211 N.W. 652 (1927). Nevertheless, aside fron'; subsequent instrument is not carefully draft divorce, the only change in the testator's cir ed, but no statute can aid in such a problem, cumstances now recognized as automatically which has to be decided by the court in each revoking a will is a combination of marriage individual case in the light of the wording of and birth or adoption of a child. Glascott v. the instrument and all the circumstances. Bragg, 111 Wis. 605, 87 N.W. 853 (1901). Mar What physical acts demonstrate the intent ri~ge alone is not enough; Will .of Lyon, 96 to revoke, and how much of the will is re WIS. 339, 71 N.W. 362 (1897); WIll of Wehr voked by such acts, is similarly a problem for cited above. Nor is birth of issue alone enough: the courts. Compare Will of Byrne, 223 Wis. Will of Read, 180 Wis. 497, 193 N.W. 382 503, 271 N.W. 48 (1937) with Estate of Hol (1923). Change in the amount or nature of Ii combe, 259 Wis. 642, 49 N.W. 2d 914 (1951). testator's estate may give rise to problems of Undoubtedly there are other actions of a abatement or ademption by extinction, but testator which clearly indicate his intent to such changes are not within this doctrine of revoke a will, but which fall short of doing so revocation by change in circumstances. One under both 238.14 and this section. Thus, In early Wisconsin case on revocation by opera re Ladd, 60 Wis. 187, 18 N.W. 734 (1884) held tion of law is anomalous and has been dis that a will was not revoked where the testa tinguished in later Wisconsin cases. This is trix wrote "I revoke this will" with her name Parsons v. Balson, 129 Wis. 311, 109 N.W. 136. and the date on the back of the will; had she (1906) which held a will revoked where it written this across the face of the will it was accidentally destroyed by fire and the would have been a cancellation within the testator, with full knowledge of its loss, later statute and hence sufficient to revoke. But adopted a child and failed to make a new there are even more "hard" cases where doc will. It is probable this case would either uments intended as wills fall short because be disapproved or limited to its precise facts. not properly executed. This section on revo Sub. (2) changes the Wisconsin rule to pro cation therefore retains existing minimal vide that marriage alone operates to revoke formalities. a will. It is designed primarily to deal with 853.13 1948
the common case of first marriage. Often trine is left to the courts for application and young uhmarried men, particularly those en development, as it has been under the existing tering the armed services, make wills in favor statute. of one or both of their parents. When such Sub. (6) changes existing Wisconsin law young men subsequently marry, they believe regarding revival of a revoked will, codicil or that such a will is no longer in force. Actu part thereof. Under existing law if a tes ally, the wife in that case is under existing tator executes will No.1, subsequently exe law limited to her elective share, one-third of cutes will No.2 which expressly revokes will the estate. It is believed that this runs coun No.1, and later destroys will No.2 with the ter to the wishes of most husbands. The intent that will No.1 be effective, the probate second marriage situation, with a will draft court is not permitted to probate will No.1, ed in favor of children by a prior marriage, however clear the evidence may be that tes is met by allowing the will to anticipate this tator wanted his first will as the effective doc problem and expressly provide against revo ument. Noon's Will, 115 Wis. 299, 91 N.W. cation and by an express exception for a will 670 (1902); Estate of Laege, 180 Wis. 32, 192 which provides for issue by a prior marriage; N.W. 373 (1923); Estate of Eberhardt, 1 Wis. marriage contracts are also common in that 2d 439, 85 N.W. 2d 483 (1957). Nevertheless situation, and can under the terms of sub. (2) the cOlU't can admit proof of testator's intent prevent operation of this section. The Eng for the purpose of determining whether rev., lish Statute of Wills, enacted in 1837, provid ocation of will No.2 was dependent or condi ed that a will made by a man or woman tional upon revival of the first will; in a prop would be revoked by his or her subsequent er case the court can then allow probate of the marriage. Twenty-four states have somewhat second will on the basis of the doctrine of varying provisions for revocation by subse dependent relative revocation. Estate of Cal quent marriage. Sub. (2) attempts to em lahan, 251 Wis. 247, 29 N.W. 2d 352 (1947); Es body the best features from those statutes. tate of Alburn, 18 Wis. 2d 340, 118 N.W. 2d 919 Sub. (2) applies to either a man or a woman (1962). Since the principle reason for deny as testator and by its terms is limited to the ing revival of the first will is to avoid the situation where the spouse survives. Thus if dangers of oral proof of intent, and the very a man made a will in favor of charity, sub same evidence is now admitted to determine sequently married, had no children, and was whether the second will (the one document predeceased by his wife, the will would still testator intends to revoke and has often de be valid. stroyed) should be allowed for probate, it There is no need to retain the existing seems logical to allow proof of the testator's rule that marriage plus birth of issue revokes intent to revive the first document. a will. Where there is marriage and the Sub. (6) allows revival under certain re spouse survives, the will is revoked; if the stricted conditions. The party urging revival spouse does not survive, so that sub. (2) is no must usually prove the intent to revive by longer applicable, the issue can take the en "clear and convincing" evidence. Only in one tire estate under the pretermitted heir stat narrow situation is revival presumed, and ute anyway. that i'S where the second document was a co The existing law whereby marriage plus dicil which did not expressly revoke the first birth of issue automatically revokes a will will but revoked a part only by inconsisten operates without regard to the testator's in cy; in such a case revival will be allowed un tent and may work a hardship in some cases. less there is sufficient proof that the testator For example, a man acquires the family busi intended not to revive the affected part of ness from his parents with the understand the prior will. This statute also makes proof ing that he will take care of an invalid sister of the testator's statements at or after the act for life. In contemplation of marriage, he of revocation admissible; this would not, it. makes a will providing for his intended wife should be noted, affect other rules of evidence and for any children born of the marriage, dealing with competency of particular wit with the balance left in trust for the invalid nesses, which may bar a particular witness sister. Under existing law this will is re from testifying to such statements. Finally voked by marriage plus the birth of a child. the will or codicil which allegedly has been Under this section, it will remain in force. revived must be produced in the original and Sub. (2) would be inapplicable because the not proved by a copy. If the testator destroys will makes a provision for the spouse (and his second will or a codicil with the intent also indicates that it was drafted in contem that the first will be revived, revival would be plation of the marriage). 853.25 on Preter allowed only where his first will was intact mitted Children is inapplicable for similar in its original form. [Bill 5-S] reasons. Sub. (3) is merely declaratory of the rule 853.13 History: 1969 c. 339, 393; Stats. 1969 laid down in Will of Battis, 143 Wis. 234, 126 s. 853.13. N.W.9 (1910); and Estate of Kort, 260 Wis. 621, Legislative Council Note, 1969: This section 51 N.W. 2d 501 (1952). Although those cases is intended to clarify the nature of 238.19 and deal with divorce, the same reasoning would also to remove any inference that joint wills apply to a judgment of annulment under ch. are made pursuant to a contract not to revoke 247. such wills. In the latter respect this changes Except in the two situations specified in existing law as expressed in the exception in subs. (2) and (3) the doctrine of revocation 238.19 and the cases stemming from Doyle v. by operation of law is abandoned. This is the Fischer, 183 Wis. 599, 198 N.W. 763 (1924) result of sub. (4). (joint will construed as strong evidence of un-: . Sub. (5) merely preserves the doctrine of dedying contract)'. In the recent case Estate. dependent relative revocation. This doc- of Hoeppner, 32 Wis. 2d 339, 145 N.W. 2d 754 1949 853;17
(1966) the Supreme Court felt bound to fol will of assets which belong to a beneficiary low the precedent, but Justice Gordon (con by survivorship in joint tenancy or benefici curring) urged corrective legislation. ary designation on life insurance or govern 238.19 was enacted in 1957 as the result of ment bonds. The doctrine allows a testator concern by some attorneys that the marital to make a testamentary gift to one benefi deduction under the federal estate tax law ciary on condition that he give up the assets might be lost when a husband and his wife which he would otherwise have outside the executed separate wills at the same time. The will and which the testator wills to another concern was that the Internal Revenue Serv beneficiary. Each case involves two issues: ice might contend that such wills were exe (1) when does the will require an election, cuted pursuant to contract or agreement that and (2) what conduct on the part of the bene the surviving spouse would not change her ficiary constitutes an election on his part to will, hence that she took subject to a trust, take under the will and give up his other in and the husband's bequest to her was a ter terests acquired outside the will. minable interest which did not meet the re Sub. (1) embodies the rule laid down in quirements of IRC 2040. It now appears that, Will of Parker, 273 Wis. 29, 76 N.W. 2d 712 even if there were an express agreement, the (1955). Where a beneficiary owns property marital deduction would be allowed; but it or has rights aside from the will (for e'xam may be necessary to litigate the issue in the pIe, as the named beneficiary under a life in federal courts. Estate of Emmet Awtry v. surance policy on the life of the testator or as Comm'r. 221 F. 2d 749 (8th Cir. 1955); New surviving joint tenant), it is presumed that man v. United State);, 176 F. Supp. 364 (S.D. the testator did not wish to affect those rights Ill. 1959); Schildmeier v. United States, 171 F. by his will; a will should require an election Supp. 328 (S.D.Ind. 1959). The tax matter is, only if it "clearly" attempts to dispose of the however, still not completely free from doubt. property. See Note 55 N.W.L. Rev. 727 (1961). The ex Sub. (2) change); existing law on the 2nd isting statute is ambiguous. Does it create a issue. 238.02 (2) provides that "acceptance presumption, or is it a requirement (similar of a bequest or devise" does not constitute an to the Statute of Frauds) that the contract election unless the will "so provides in ex must be referred to on the face of the will to press terms". Apparently this means that the be enforceable? Suppose, for example, that a beneficiary can take under the will and also husband and wife execute separate wills con retain rights outside the will unless the will taining no mention of a contract but they also expressly provides that acceptance of the be execute a written contract whereby each quest or devise is an election. Since the doc promises not to revoke his or her will without trine of election is primarily designed to re the consent of the other. If 238.19 is merely a lieve against mistake, this requirement in the rule of construction (as is indicated by the existing statute seems to nullify the entire word "construed"), the contract can be doctrine. See Estate of Riley, 6 Wis. 2d 29, proved by the written agreement. But if so, 94 N.W. 2d 233 (1959). Where the will is an oral contract could also be proved by ex clearly intended to call for a choice by the trinsic evidence in a proper case. Under this beneficiary as a condition to taking under the interpretation, 238.19 merely removes any in will, acceptance of the devise or bequest under ference that there is a contract arising from the will is the clearest possible indication of similarity of terms of two wills executed at choice. Sub. (2) provides a procedure where the same time. This section has been re by the election can be required and deter worded to make it clear that no substantive mined. Part of the existing law is retained in requirement is involved, but merely an evi the provision that participation in administra dentiary requirement. tion of the estate is not an election. Thus a The existing judicial rule, indirectly en beneficiary could petition for probate of the dorsed by the provisions of 238.19 which ex will and be appointed executor of the will and cept joint wills, making it easier to infer a con still have a free choice when the court re tractual arrangement where there is a joint quires a written election to be filed. [Bill5-S] will should be changed. In the first place, joint wills are sometimes used without any 853.17 Hisiory: 1969 c. 339; 1969 c. 411 s. intent to make a binding promise not to re 13; 1969 c. 424; Stats. 1969 s. 853.17. voke such wills; and in any event the existing Legislative Council Note, 1969: This section rule tends to invite litigation in joint will is new and changes the Wisconsin law to . cases. This section, requiring clear and con achieve uniformity. If a life insurance policy vincing evidence "apart from the will", de is payable to a named beneficiary who sur stroys any inference that joint wills are pur vives the testator, in almost all states a provi suant to contract, any more than any other sion in the insured's will changing the bene wills. But persons are free to make a con ficiary is ineffective. Largely due to an early tract not to revoke joint wills, just as they court misunderstanding regarding the nature can contract not to revoke mutual wills or or of life insurance, Wisconsin permits a change dinary wills. [Bill 5-S] of the life insurance beneficiary by a provi sion in the will in limited situations. Estate 853.15 Hisfory: 1969 c. 339; Stats. 1969 s. of Breitung, 78 Wis. 33, 46 N.W.891, 47 N.W. 853.15 .. 17 (1890). The rule does not apply if the in .. Legislative Council Note, 1969: This section surance is payable to a married woman or, if replaces 238.02(2) and deals with the doc the insurance is mutual benefit and the soci trine of equitable election laid down in Will ety has a rule prohibiting change by will. of Schaech, 252 Wis. 299, 31 N.W. 2d 614 Christman v. Christman, 163 Wis. 433, 157 . (1947). The problem commonly arises if a N.W. 1009 (1916); Thomas v. Covert, 126 Wis . .' testator mistakenly attempts to dispose by . 593, 105 N.W. 922 (1906). Most illsur'ance 853.18 1950 companies provide an exclusive method by as that provided in 852.13 and sets standards which the insured can change the beneficiary for renunciation within a reasonable time. with specified formalities. . Partial renunciation is permitted unless the In the interests of bringing Wisconsin into testator's will expressly provides otherwise; line with the majority of states and of elimi this is undoubtedly the intent in modern times. nating now obsolete distinctions, this section The most significant change is in the effect changes the Wisconsin rule. It has no appli of renunciation. Normally the rule in 238.135 cation if at the death of the testator there is is sound and would prevail under this section no surviving beneficiary properly designated as a matter of regular rules of construction. in accordance with the insurance contract or However, if the testator has provided a sub the company's bylaws; in that case the pro stitutionary gift or if the antilapse statute is ceeds become payable to the personal repre applicable this provision would achieve a dif sentative and a provision in the will naming ferent result. Thus if testator left a gift to his a beneficiary becomes an effective testament son, the son could renounce so that the prop ary disposition of the proceeds. [Bill 5-S] erty would pass to his children. This accords with the rule adopted for renunciation of an 853.18 History: 1969 c. 82; 1969 c. 392 s. 66; intestate share. It may handicap postmortem Stats. 1969 s. 853.18. estate planning in a few situations, as where 853.19 History: 1969 c. 339; Stats. 1969 s. the son in our prior illustration wished to re 853.19. nounce so that the gift would be added to a residuary gift for charity. If the testator Legislative Council Note, 1969: This section wishes to anticipate renunciation, he can un is new. There is no statute dealing with the der this section provide for its effect by the effectiveness of inter vivos gifts to a benefi terms of his will. [Bill 5-S] ciary under the will if the testator intends those gifts to be deducted from the bequest 853.23 History: 1969 c. 339, 424; Stats. 1969 or legacy in the will. At common law, which s.853.23. would prevail, the court would deal with the Legislative Council Note, 1969: This section problem as one of "ademption by satisfaction" is new. It is necessary because of settled and would allow proof, including testimony property notions that a power of appointment as to oral statements, to establish whether the is not technically an interest in property; nor gift is to be deducted or to be in addition to is property appointed by a testator under a the will provision. The court is aided by power considered as property passing under "presumptions"; thus, if the gift is to a child the test
853.27 History: 1969 c. 339; Stats. 1969 s. have been exercised in favor of the persons 853.27. taking under this section. Legislative Council Note, 1969: This section This section substitutes "such issue as rep provides against "lapse" where the benefici resent the deceased beneficiary". Normally ary under a will predeceases the testator. It this would be the children. However, issue is designed to carry out the normal intent of a of several generations might be involved, and testator who provides in his will for a child representation or per stirpital distribution or other relative, and the child dies before the would then be necessary. Thus where a gift testator and leaves issue who survive the tes is made to a brother, who predeceases testa tator. Thus, if testator leaves a bequest for a tor, the normal rules of representation would son, it is assumed that had the testator apply to determine whether any of the broth thought about the possibility of the son dying er's grandchildren would share the gift with before him, the testator would want the son's his children. children to take his place under the will. The Committee considered the desirability The section governs only if there is no ex of codifying the law regarding disposition of pression of contrary intent in the will. Nor a lapsed gift not saved by the statute, pat mally this will take the form of a gift over in terned on Model Probate Code s. 57 (a). How event of the death of the named beneficiary. ever, it was decided not to include any pro However, it may simply be in the form of a vision on this subject. The interrelation of condition that the beneficiary take "if he sur clauses in a modern will is often complex, so vives me". 238.13 reads: "unless a different that effect of failure of one clause or gift upon disposition shall be made or directed by the the whole is better left to the courts to work will". However, even though no different dis out in light of the whole testamentary scheme position is made, a gift expressly conditional in the individual case. Since it is clear under on survival does not take effect under an anti modern law (and 853.29) that a will can pass lapse statute. While similar language has after acquired real estate, there is no need for been thus interpreted in other states, the pro a special provision that a lapsed devise passes posed language ("Unless a contrary intent is under the residue in a proper case, rather than indicated by the will") is clearer. Cf. Estate under the intestate law. [Bill 5-S] of Stewart, 270 Wis. 610, 72 N.W. 2d 334 853.29 History: 1969 c. 339; Stats. 1969 s. (1955). 853.29 . . This section applies only to gifts to rela tives as does the present statute. It is not Legislative Council Note, 1969: This section limited to heirs under s. 852.01 but may in builds on 238.03 but modernizes the statutory clude more remote relatives. It would exclude language so that a will is presumed to pass all relati:ves by marriage; see Cleaver v. Cleaver, after-acquired property, whether real or per 39 WIS. 96 (1875); Estate of Dodge, 1 Wis. 2d sonal. This is the existing rule as to person 399, 84 N.W. 2d 66 (1956). This section in alty, but changes the form of the rule as to cludes an adopted person who enjoys any de realty. gree of r.e~ation by virtue of the adoption, by The law of wills is a product of history and the prOVISlOn of 851.51; 238.13 has been simi the development of wills of land and t~sta larly interpreted. ments of personalty under different court sys Sub. (2) provides definite answers to cer tems has left an unfortunate imprint on many tain situations as to which 238.13 is indefinite. aspects of the law today. Although the con Thus it is made clear that the statute applies cept of the will as an ambulatory document where the relative is dead at the time the will speaking and taking effect as of the date of is executed (a "void" gift rather than a case the testator's death developed fully as to per of "lapse") if the gift is to an individual. It sonalty, the will of real property (after the is also uncertain whether class gifts are in Statute of Wills in 1540) was thought of as a cluded within the existing statute, although revocable present conveyance to take effect at this seems to have been generally assumed in death. See 1 Page (Bowe-Parker ed.) ss. two cases: Estate of Phillips, 236 Wis. 268 16.12-16.13. This led to the rule that a will 294 N.W. 824 (1940) (holding statute inappli~ could not pass after-acquired realty even cable where gift was to "my nephews and though the intent to do so was clearly ex nieces" and issue of nephews and nieces who pressed. Three types of statutes have been died before execution of the will claimed un passed in this country to change this rule: der the statute); Estate of Stewart, 270 Wis. (1) Some states have statutes comparable 610, 72 N.W. 2d 334 (1955) (statute again held to 238.03, providing that a will may pass after inapplicable where gift was in trust for "all acquired realty if the intent to do so is clearly of my children living at the time of my death" expressed. on grounds that will made "a different dispo (2) Some· states have statutes providing sition" in favor of the living children). Fi that the will passes after-acquired realty un nally, there are no Wisconsin cases bearing on less a contrary intent is expressed (thus re the application of the antilapse statute to the versing the presumption involved in the first exercise of a power of appointment where the type of statute). appointee predeceases the donee of the power' (3) Some have even broader statutes it is arguable that an appointment is not ~ which are based on the English Statute of "devise 01' legacy" and hence not within such Wills (1837) and provide that the will is to be a statute. See V Am. Law of Property s. construed as if it had been executed immedi 23.47 and Hestatement, Property (1940) s. ately before the testator's death unless a con 350. Sub. (2) (c) includes both general and trary intent appears in the will. It should be special powers of appointment except where noted that this statute may do more than the special power of appointment could not merely change the rule as to after-acquired 1953 853.35
property; it may affect the approach to other other beneficiary, the presumption has less construction problems. weight. See Will of Ritchie, 190 Wis. 116,208 238.03 is the most limited of the three types N.W. 880 (1926) (reversing lower court); Will of statutes. Although in its day it was in of Richter, 215 Wis. 108, 254 N.W. 103 (1934) tended as a "liberalizing" statute, it i'S now ob (finding only a life estate where there was a solete and restrictive. It has proved work gift over, with no mention of statute), This able only because our Supreme Court has section is not intended to change this result, gone to considerable lengths to avoid literal This section include'S personal as well as application of the statute. The most recent real property, although there never has been case is Estate of Zink, 15 Wis. 2d 527, 113 N.W. any doubt but that this is the rule as to per 2d 420 (1961) (holding that a residuary sonalty. [Bill 5-S] clause expresses the necessary intent to dis pose of the testator's entire property, includ 853.33 History: 1969 c. 339; Stats. 1969 s. ing after-acquired realty). See also Will of 853,33. Smith, 176 Wis. 494, 186 N.W. 180 (1922); Es Legislative Council Note, 1969: This section tate of Buser, 8 Wis. 2d 40, 98 N.W. 2d 425 is new. If a testator disposes by gift in his (1950). Nevertheless, the existing statutory will of a stated number of shares of securities, language ought to be changed, not only to re such as "100 shares of XYZ common stock" or flect the liberal judicial interpretation but "$5,000 of government bonds" and at the time also to prevent hardship in some cases be of execution of the will he owns that number yond the scope of such interpretation. of shares or that amount of bonds, he pre This section adopts an intermediate ap sumably is thinking of the specific stock or proach. As to inclusion of after-acquired bonds he then owns. However, under exist property it essentially adopts a time-of-death ing rules of construction the court will con construction. However, the Committee did strue the gift as a general gift. If the testator not feel it necessary to propose a broad stat sells the stock or cashes the bonds after his ute favoring the time-of-death construction in will is drawn, the personal representative is all other types of situations. In situations not under a duty to purchase stock or bonds to covered by the statute the court is thus free satisfy the bequest. Conversely, if the stock to explore the intent of the testator in the in is augmented by a stock dividend prior to tes dividual case, under normal rule's of con tator's death, the named beneficiary receives struction, and to adopt whatever presumption only 100 shares of stock and not the dividend. the court feels more desirable for the partic This section changes the rule and requires the ular kind of problem, although the principle court to construe the gift as specific, i.e., re that "a will speaks as of the testator's death" ferring to the property owned by the testator will usually prevail. This section follows the at the time the will is executed. Hence the policy of uniform treatment for real and per beneficiary would under the next section sonal property and accords with the oft-re (853.35) get the benefit of the stock dividend. peated rule that a testator intends to dispose [Bill 5-S] of all his property (the presumption against intestacy). [Bill 5-S] 853.35 History: 1969 c. 339; Stat's. 1969 s. 853.35. 853.31 History: 1969 c. 339; Stats. 1969 s. Legislative Council Note, 1969: This section 853.31. is new and changes the law. At common law, Legislative Council Note, 1969: This section if real or personal property were specifically makes no substantial change in the existing given by will to a named person, and the prop law. erty were destroyed or sold between the time At common law a devise in a will was in of execution of the will and the testator's terpreted to pass only a life estate unless the death, the devise or bequest failed; the reason intent to pass a fee was expressed, although it was that there was no property in the estate was not necessary that the devise contain to satisfy the specific gift. This doctrine, words of inheritance to pass a fee, as was the known as ademption by extinction, worked rule for deeds. It was to change this common without regard to the testator's intent. It was law rule of construction that 238.02 (1) was ameliorated to some extent by various judi enacted. Our court has properly interpreted cial approaches. Thus if testator devised "my the wording of our existing statute ("unless residence" to his wife, and sold the residence it shall clearly appear by the will") as not be he owned at the time the will was drafted ing a limitation on the power of the court to and subsequently purchased another resi consider surrounding circumstances in con dence, the court would apply the time-of struing a devise to pass either a fee or a life death construction; by relating the phrase estate. Dew v. Kuehn, 64 Wis. 293, 25 N.W. "my residence" to the residence testator 212 (1885) (tracing history of the common owned at death, ademption was avoided. But law and statutory rules). if testator sold one residence and died pending The common law rule was designed to pro negotiations to purchase another residence, tect the heir. Modern law on the other hand the wife was out of luck. If the testator sold adopts a presumption against intestacy where on a land contract, our Supreme Court lias a will has been properly executed. The pre held that the devisee is entitled to the unpaid sumption is, therefore, strong that the devise balance on the land contract. Estate of At passes all of the testator's real e'state when kinson, 19 Wis. 2d 272, 120 N.W. 2d 109 (1963). the contest is between the devisee and the Apparently the result would be different if heir. When, however, the contest is between the testator had sold and taken a mortgage the devisee and another beneficiary under the back, however. The same kind of problem will who claims that the devisee takes only a arises if the house burns down before the tes life interest and that there is a gift over to the tator's death. Is the devisee entitled to the 856.01 1954
fire insurance proceeds? In a somewhat Present law is changed so that a copy of the analogous case our Supreme Court again pre will need not be sent to persons who receive vented hardship by giving the insurance pro only a specific or monetary bequest, but pro ceeds to the surviving joint tenant. Rock vides that they shall be informed of the nature County Savings & Trust Co. v. London Assur and amount of the bequest. [Bill 5-S] ance Co., 17 Wis. 2d 618, 117 N.W. 2d 676 (1962). The existing law not only involves 856.13 History: 1969 c. 339; Stats. 1969 s. uncertainty but requires costly litigation to 856.13. reach a decision in each new case. This sec Legislative Council Note, 1969: This section tion is intended to settle the law. is based upon present s. 238.18. [Bill 5-S] The Committee decided that specific kinds of situations should be covered by the statute, 856.15 History: 1969 c. 339; Stats. 1969 s. rather than a broad statute abolishing the doc 856.15. trine entirely. The resulting statute is only Legislative Council Note, 1969: This section partly drawn from legislation in other states. is a restatement of present s. 310.06. [Bill5-S] The need for an antiademption statute was considered as great as the need for the anti 85S.17 History: 1969 c. 339; Stats. 1969 s. lapse statute which has been on the books for 856.17. many years. The statute is intended to carry Legislative Council Note, 1969: This section out the normal intent of the testator. [Bill is a restatement of present s. 310.10. [Bill5-S] 5-S] 856.19 History: 1969 c. 339; Stats. 1969 s. CHAPTER 856. 856.19. Opening Estates. Legislative Council Note, 1969: This section is based upon present s. 238.20, however, it Legislaiive Council Note, 1969: This chapter has been modified to eliminate the need for deals with procedure from the initial petition one form in the administration of estates. through the appointment and bonding of the [Bill 5-S] personal representative. It replaces chs. 310 and 311. [Bill 5-S] 856.21 History: 1969 c. 339; Stats. 1969 s. 856.21. 856.01 History: 1969 c. 339; Stats. 1969 s. Legislative Council Note, 1969: This section 856.01. is a restatement of ss. 310.12 and 311.02 and Legislative Council Note, 1969: This is a re current practice. [Bill 5-S] statement of present s. 311.01. [Bill 5-S] 856.23 History: 1969 c. 339; Stats. 1969 s. 856.03 History: 1969 c. 339; Stats. 1969 s. 856.23. 856.03. Legislative Council Note, 1969: This section Legislative Council Note, 1969: This section is based upon and is a consolidation of ss. is based upon present s. 310.01. [Bill 5-S] 310.16, 310.17, 311.02 and 324.35. [Bill 5-S] 856.05 History: 1969 c. 339; Stats. 1969 s. 856.25 History: 1969 c. 339; Stats. 1969 s. 856.05. 856.25. Legislative Council Note, 1969: Sub. (1) is Legislative Council Nole, 1969: This section a restatement of s. 310.02 (1) and (2). gives the court complete discretion to deter Sub. (2) is new and places upon a person mine whether a bond will be required and who has information concerning an unfiled the amount of the bond if one is required. will the duty to give this information to the [Bill 5-S] court. It is intended to enable a person in this position to act without being considered 856.27 History: 1969 c. 339; Stats. 1969 s. an intermeddler. 856.27. Sub. (3) is a restatement of present s. 310.031. Legislative Council Note, 1969: This section Sub. (4) is a restatement of present s. 310.03. is intended to expedite the administration of [Bill 5-S] an estate when there is delay in the appoint ment of the personal representative. [Bill 856.07 History: 1969 c. 339; Stats. 1969 s. 5-S] 856.07. Legislative Council Note, 1969: This section 856.29 HistOl'Y: 1969 c. 339; Stats. 1969 s. is based upon present ss. 311.01 and 311.02, 856.29. however the section simplifies the classifica Legislative Council Note, 1969: This section tion of those who may petition for administra is new. As a testamentary trust is directly tion. [Bill 5-S] affected by proceedings in the administration of an estate (such ,as a will construction or 856.09 History: 1969 c. 339; Stats. 1969 s. accounting) the testamentary trustee is given 856.09. standing to be heard in such matters. [Bill Legislative Council Note, 1969: This section 5-S] is ,new and codifies present practice. [Bill 5-S] 856.31 Hisfory: 1969 c. 339; Stats. 1969 s. 856.31. 856.11 History: 1969 c. 339; Stats. 1969 s. Legislative Council Note, 1969: This section 856.11. is based upon present s. 310.25. However, it Legis~aiive Council Note, 1969: This section requires the corporate fiduciary to notify is based upon present ss. 310.04 and 311.03. those persons who have the right to name the