Wisconsin § 853.01 - Capacity to make or revoke a will.

§ 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation 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 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.