In our blog post on estate planning in the midst of the global COVID-19 pandemic, Melissa Kampmann and I noted that it isn’t possible to create a valid will in Wisconsin without two witnesses, and it isn’t the best practice to create a will without two witnesses and a notary public. But there’s more to creating a valid will than just those requirements. How do you create a valid will in Wisconsin?
Capacity
Wisconsin law requires you to have capacity in order to create a valid will. What does “capacity” mean in this context? It means that you are age 18 or older, and you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property upon death. Capacity also requires that you’re not coerced by another person to create the will, particularly if that person will receive a bequest that is in excess of what they would inherit if you died without a will (i.e., intestate).
Written Instrument
Some states permit oral wills, particularly in situations that do not allow the time or convenience of working with an attorney. The classic example is the military service member who is injured at war and delivers the will orally to several witnesses on their deathbed. Wisconsin does not allow oral wills. In order for a will to be valid, Wisconsin law requires that it be written.
Signed and Witnessed
There are some states that allow holographic wills, which are handwritten and signed without witnesses present. A holographic will is not valid in Wisconsin, unless the person who created the will was a resident of a state in which holographic wills are valid upon signing the will. In Wisconsin, you must sign a will in the conscious presence of two witnesses in order for the will to be valid.
The witnesses may be any persons who are competent to testify at the time that they witness your signature. The best practice is for the witnesses to be disinterested, meaning that they will not benefit from the will. If a person who may benefit from your will serves as a witness, and if the will grants them a bequest that is in excess of what they would inherit if you died without a will, then the bequest may be reduced to the amount that they would have inherited if you died without a will. This result would be contrary to your intentions.
Your will must be signed in the “conscious presence” of two witnesses. It is unclear whether Wisconsin law requires the witnesses to be physically present, or if videoconferencing is sufficient. Given the uncertainty, it is the best practice for the witnesses to be physically present when you sign the will.
Proof of Will
Your will is valid in Wisconsin if you had capacity and signed a written will in the presence of two witnesses, and the witnesses signed your will. Upon your death, your will must be proven in order to be admitted to probate. In general, Wisconsin law requires at least one of the witnesses to make a sworn statement that the will is valid in a court hearing. If neither of the witnesses can be located, the court may accept testimony from others regarding the validity of your will.
Do you prefer to avoid a court hearing? In order to avoid the court hearing to prove your will, you should attach a self-proving affidavit to your will. There are two ways to create a valid self-proving affidavit: (1) a notary public may administer oaths and notarize your will at the same time as you and the witnesses sign the will; or (2) you and the witnesses may sign your will, then you and the witnesses may present the will to a notary public, who will administer oaths and notarize the will. The first procedure is the most common and efficient, but the second procedure is useful for situations in which a notary public is not readily available and having a will that must be proven in court is better than having no will. If you attach a self-proving affidavit to your will, it is presumed to be valid and may be admitted to probate without a court hearing.
Wisconsin passed a remote online notarization law to be effective on May 1, 2020. On March 18, 2020, the Wisconsin Department of Financial Institutions issued emergency guidance stating that the remote online notarization law would be effective immediately as a result of the COVID-19 pandemic. Unfortunately, the remote online notarization law does not apply to estate planning documents, including wills. Under current law, the self-proving affidavit to your will must be notarized in person for it to be valid in Wisconsin. This law could change in the future, as Wisconsin considers the Uniform Electronic Wills Act and other legal and technological advancements.
