Estates and TrustsEstates and TrustsFNBSLW 442FNBSLW 442

WillsWillsRequirements for a Valid Requirements for a Valid

WillWill

Wills … A PrivilegeWills … A Privilege

““Rights of succession to the property of a Rights of succession to the property of a deceased . . . are of statutory creation, deceased . . . are of statutory creation, and the dead hand rules succession only and the dead hand rules succession only by sufferance. Nothing in the federal by sufferance. Nothing in the federal constitution forbids the legislature of a constitution forbids the legislature of a state to limit, condition, or even abolish state to limit, condition, or even abolish the power of testamentary disposition over the power of testamentary disposition over property within its jurisdiction.” property within its jurisdiction.” Irving Irving Trust Co. v. Day, 314 U.S. 556, 562 (1974).Trust Co. v. Day, 314 U.S. 556, 562 (1974).

Requirements for a Valid WillRequirements for a Valid Will

Legal CapacityLegal Capacity Testamentary CapacityTestamentary Capacity Testamentary IntentTestamentary Intent FormalitiesFormalities

Legal CapacityLegal Capacity

A person must possess a certain A person must possess a certain status to be able to make a status to be able to make a testamentary disposition of property.testamentary disposition of property.

Early U.S. law prohibited married Early U.S. law prohibited married women, aliens, convicts and Native women, aliens, convicts and Native Americans from executing a will Americans from executing a will merely because of their supposedly merely because of their supposedly inferior status.inferior status.

AgeAge

Every state today grants a person the Every state today grants a person the legal capacity to execute a will upon legal capacity to execute a will upon reaching a statutorily specified age.reaching a statutorily specified age.

The most common age is eighteen.The most common age is eighteen. In a few states, it is as young as In a few states, it is as young as

fourteen.fourteen. No state has different ages based on the No state has different ages based on the

gender of the testator.gender of the testator. Wisconsin – W.S.A. § 853.01 – Wisconsin – W.S.A. § 853.01 – “…18 “…18

years of age or older….”years of age or older….”

Age and Marital StatusAge and Marital Status

Several states permit a person below Several states permit a person below the statutorily mandated age to the statutorily mandated age to execute a will if they are legally execute a will if they are legally married.married.

Age and Military ServiceAge and Military Service

A few states provide that a person in A few states provide that a person in military service may execute a will military service may execute a will even if the person is under the even if the person is under the normal minimum age for legal normal minimum age for legal capacity.capacity.

Testamentary CapacityTestamentary Capacity

The second requirement for a valid The second requirement for a valid will is that the testator must have will is that the testator must have had testamentary capacity at the had testamentary capacity at the time the testator executed the will.time the testator executed the will.

““Sound mind”Sound mind” Wisconsin – W.S.A. § 853.01 – Wisconsin – W.S.A. § 853.01 – “Any “Any

person of sound mind ….”person of sound mind ….”

Elements of Testamentary CapacityElements of Testamentary Capacity

1.1. Comprehended the action being taken Comprehended the action being taken and its effect,and its effect,

2.2. Knew the nature and extent of the Knew the nature and extent of the testator’s property,testator’s property,

3.3. Recognized the natural objects of the Recognized the natural objects of the testator’s bounty, andtestator’s bounty, and

4.4. Simultaneously held the first three Simultaneously held the first three elements in the testator’s mind long elements in the testator’s mind long enough to make a reasoned judgment enough to make a reasoned judgment regarding property disposition.regarding property disposition.

Comprehend the Action and Its Comprehend the Action and Its EffectEffect

A testator must understand what he A testator must understand what he is doing and its effect. is doing and its effect.

It is not necessary for the testator to It is not necessary for the testator to know all of the legal terms involved know all of the legal terms involved in the process. in the process.

E.g., Tommy and his friend “Will”E.g., Tommy and his friend “Will”

Know Nature and Extent of Know Nature and Extent of PropertyProperty

The testator must know, or be able to The testator must know, or be able to understand, the general nature and understand, the general nature and extent of his property.extent of his property.

The testator does not need to be able The testator does not need to be able to provide a precise accounting of to provide a precise accounting of each asset he owns and its value.each asset he owns and its value.

E.g., estate worth $1,000,000 more.E.g., estate worth $1,000,000 more.

Recognize the Natural Objects of Recognize the Natural Objects of BountyBounty

The testator must know, or be able to The testator must know, or be able to understand, the individuals who would understand, the individuals who would naturally naturally benefit from his death.benefit from his death.

In other words, the testator needs to In other words, the testator needs to know who would receive his property know who would receive his property if he died intestate), such as spouse, if he died intestate), such as spouse, children, parents, grandparents, children, parents, grandparents, siblings, etc.siblings, etc.

E.g., 20 grandchildren … what were E.g., 20 grandchildren … what were their names again?their names again?

Simultaneously Hold Elements in Mind Simultaneously Hold Elements in Mind and Make Reasonable Judgmentand Make Reasonable Judgment

This element requires the testator to This element requires the testator to hold the first three elements in his hold the first three elements in his mind simultaneously and for a long mind simultaneously and for a long enough time to perceive their enough time to perceive their relationship to each other and to relationship to each other and to make a reasonable judgment.make a reasonable judgment.

E.g., periods of lucidity.E.g., periods of lucidity. E.g., under the influence.E.g., under the influence.

Testamentary IntentTestamentary Intent

The will must reflect the testator’s The will must reflect the testator’s intent.intent.

The testator must intend that the very The testator must intend that the very instrument he executed is to be his instrument he executed is to be his will and effective upon his death.will and effective upon his death.

E.g., letter to attorney listing changes E.g., letter to attorney listing changes to will.to will.

E.g., sham will as part of hazing ritual.E.g., sham will as part of hazing ritual.

Will FormalitiesWill Formalities

Most states require exact compliance Most states require exact compliance with will formality statues.with will formality statues.

Minor errors are not excused.Minor errors are not excused.

Purposes of Will FormalitiesPurposes of Will Formalities

Ritual or Cautionary FunctionRitual or Cautionary Function – to make – to make sure the testator intended to make and at-sure the testator intended to make and at-death distribution of his property.death distribution of his property.

Evidentiary FunctionEvidentiary Function – create reliable – create reliable evidence of testator’s intent.evidence of testator’s intent.

Protective FunctionProtective Function – to make it difficult for – to make it difficult for an evil person to exert undue influence.an evil person to exert undue influence.

Channeling FunctionChanneling Function – to increase the – to increase the confidence of the testator that his desires confidence of the testator that his desires will be carried out upon his death.will be carried out upon his death.

Attested WillsAttested Wills

Attested wills, that is, wills that are Attested wills, that is, wills that are witnessed, are the most common witnessed, are the most common type of will.type of will.

An attested will must be:An attested will must be:1.1. In writing, In writing,

2.2. Signed by the Testator, andSigned by the Testator, and

3.3. Witnessed.Witnessed.

In WritingIn Writing

Statues generally do not specify with what Statues generally do not specify with what or on what the will must be written.or on what the will must be written.

Examples include wills written on a nurse’s Examples include wills written on a nurse’s petticoat, inscribed on a bed post, petticoat, inscribed on a bed post, scratched into paint on a tractor fender, scratched into paint on a tractor fender, written on the bottom of a chest of written on the bottom of a chest of drawers, and etched on an empty egg drawers, and etched on an empty egg shell.shell.

Wisconsin – W.S.A. § 853.03 – Wisconsin – W.S.A. § 853.03 – “every “every will . . . must be in writing….”will . . . must be in writing….”

Signed by TestatorSigned by Testator

All states require that attested wills All states require that attested wills be signed by the testator.be signed by the testator.

The formality of signature The formality of signature requirement serves two functions:requirement serves two functions: Assurance of Approval by the TestatorAssurance of Approval by the Testator Aura of FinalityAura of Finality

Wisconsin – W.S.A. § 853.01 – Wisconsin – W.S.A. § 853.01 – “It “It must be signed by the testator….”must be signed by the testator….”

SignatureSignature Defined Defined

Broadly defined to encompass any Broadly defined to encompass any symbol the testator executes.symbol the testator executes. Legal name not necessaryLegal name not necessary By MarkBy Mark Proxy SignatureProxy Signature

Proxy SignatureProxy Signature

Most states permit the testator’s signature Most states permit the testator’s signature to be affixed to the will by another person.to be affixed to the will by another person.

Generally, two components,Generally, two components, Proxy must sign in the testator’s presence andProxy must sign in the testator’s presence and Proxy must sign at the testator’s directionProxy must sign at the testator’s direction .. Some states also require proxy’s signature to Some states also require proxy’s signature to

appear as well.appear as well. Wisconsin – W.S.A. § 853.03 – Wisconsin – W.S.A. § 853.03 – “. . . or in the “. . . or in the

testator’s name by another person at the testator’s name by another person at the testator’s direction and in the testator’s testator’s direction and in the testator’s conscious presence.”conscious presence.”

Location of SignatureLocation of Signature

Most state laws do not mandate the Most state laws do not mandate the location in which the testator’s location in which the testator’s signature must appear.signature must appear.

Some states require that wills be Some states require that wills be signed at the end or foot of the signed at the end or foot of the instrument.instrument.

Attested by WitnessesAttested by Witnesses

Most states require at least two Most states require at least two witnesses.witnesses.

Generally, there is no statutory minimum Generally, there is no statutory minimum age for a witness.age for a witness.

Witnesses must be competent or credible Witnesses must be competent or credible at the time they attested to the will.at the time they attested to the will.

Wisconsin – W.S.A. § 853.07 – Wisconsin – W.S.A. § 853.07 – “Any “Any person who, at the time of execution of person who, at the time of execution of the will, would be competent to testify as the will, would be competent to testify as a witness….”a witness….”

PublicationPublication

In most states, there is no In most states, there is no requirement that a testator requirement that a testator publish publish the will to the witnesses, that is, tell the will to the witnesses, that is, tell the witnesses the document they are the witnesses the document they are witnessing is a will.witnessing is a will.

Some states require publication.Some states require publication. Even in publication states, witnesses Even in publication states, witnesses

do not need to know the contents of do not need to know the contents of the will.the will.

Temporal OrderTemporal Order The testator should sign the will prior to the The testator should sign the will prior to the

attestation of the witnesses.attestation of the witnesses. EnglishEnglish or or strict view - strict view - testator first.testator first. AmericanAmerican or or continuous transaction approach – continuous transaction approach –

as long as the testator signs and the witnesses as long as the testator signs and the witnesses attest at approximately same time as part of a attest at approximately same time as part of a continuous transaction, execution/attestation is continuous transaction, execution/attestation is effective.effective.

Wisconsin – W.S.A. § 853.03(2) – Wisconsin – W.S.A. § 853.03(2) – “within a “within a reasonable amount of time after reasonable amount of time after witnessing….”witnessing….”

(a)(a) Testator sign,Testator sign,(b)(b) Testator acknowledge signature, orTestator acknowledge signature, or(c)(c) Testator acknowledge will.Testator acknowledge will.

Interested WitnessesInterested Witnesses

An interested witness is a witness who An interested witness is a witness who stands to benefit if the testator’s will is valid.stands to benefit if the testator’s will is valid.

Ramifications of having an interested person Ramifications of having an interested person serve as a necessary witness to the will:serve as a necessary witness to the will: Entire will is void.Entire will is void. Gift to the witness is void.Gift to the witness is void. Gift to the witness is void unless witness would Gift to the witness is void unless witness would

receive same or more as intestate heir.receive same or more as intestate heir. No effect.No effect.

Interested Witnesses in WisconsinInterested Witnesses in Wisconsin

Wisconsin – W.S.A. § 853.07(2) – Wisconsin – W.S.A. § 853.07(2) – “Subject to “Subject to (b) and (c), a will is not invalidated because (b) and (c), a will is not invalidated because it is signed by an interested witness.”it is signed by an interested witness.”

(b) any provision for an interested witness (b) any provision for an interested witness (or the witness’s spouse) are invalid to the (or the witness’s spouse) are invalid to the extent that the aggregate value exceeds extent that the aggregate value exceeds what the witness (or witness’s spouse) what the witness (or witness’s spouse) would have received if testator died would have received if testator died intestate.intestate.

(c) but … (b) doesn’t apply if (1) there are (c) but … (b) doesn’t apply if (1) there are two other disinterested witnesses or (2) two other disinterested witnesses or (2) there is sufficient evidence that the testator there is sufficient evidence that the testator intended the full transfer to take effect.intended the full transfer to take effect.

Self-Proving AffidavitSelf-Proving Affidavit

A self-proving affidavit is a notarized A self-proving affidavit is a notarized statement by the testator and the statement by the testator and the witnesses affirming under oath that witnesses affirming under oath that all the requirements of a valid will all the requirements of a valid will have been satisfied.have been satisfied.

Wisconsin – W.S.A. § 853.04 – Wisconsin – W.S.A. § 853.04 – “A will “A will may be simultaneously executed, may be simultaneously executed, attested and made self-proved by attested and made self-proved by the affidavit of the testator and the affidavit of the testator and witnesses.”witnesses.”

Holographic WillsHolographic Wills

A holographic will is prepared in the A holographic will is prepared in the testator’s own handwriting.testator’s own handwriting.

In approximately ½ of the states, In approximately ½ of the states, holographic wills are exempted from holographic wills are exempted from the attestation requirement.the attestation requirement.

Wisconsin - Holographic wills are not Wisconsin - Holographic wills are not given any special treatment. The given any special treatment. The attestation requirement still applies.attestation requirement still applies.

Oral WillsOral Wills

Many states do not recognize oral wills.Many states do not recognize oral wills. In states that do recognize oral wills, there are In states that do recognize oral wills, there are

generally restrictions imposed, such as on:generally restrictions imposed, such as on: The type of property covered – no disposition of The type of property covered – no disposition of

real property.real property. The amount of property covered – small $ amounts.The amount of property covered – small $ amounts. Condition of testator – imminent death.Condition of testator – imminent death. Number of witnesses – three, even if only two are Number of witnesses – three, even if only two are

needed for attested wills.needed for attested wills. Wisconsin does not recognize oral wills.Wisconsin does not recognize oral wills.

Statutory WillsStatutory Wills

Enacted by only a handful of states.Enacted by only a handful of states. Fill-in-the-Blank format.Fill-in-the-Blank format. Wisconsin – W.S.A. §§ 853.50-853.62Wisconsin – W.S.A. §§ 853.50-853.62