Challenging a Will
Posted: March 10, 2017
To prevail with a will contest claim, the petitioner must prove a legal flaw, such as one of the following.
Lack of Proper Formalities
A will may be contested if it is not executed with proper formalities. The requirements for a validly executed will in Wisconsin are that it be:
1. In writing,
2. Signed by the testator or at the direction of the testator in the testator’s conscious presence, and
3. Signed by at least two witnesses.
A will may be made “self-proving” by a notarized affidavit signed by the testator and witnesses. A self-proving will is presumed to be validly executed.
Lack of Capacity
A testator must be at least 18 years of age and of sound mind. A will may be contested if the testator lacked capacity at the time of the will’s execution.
To be of sound mind, a testator must have the capacity to understand the nature, extent, state of affairs of his or her property, his or her relationship to persons who might reasonably be expected to be beneficiaries, and how provisions of the will may affect beneficiaries and legatees. The testator must be able to contemplate these matters for a sufficient period of time to form rational judgment in relation to them, and so express them in the will. Perfect memory is not required and a general lack of mental capacity can be overcome by demonstrated moments of lucidity.
A will may be contested for fraud if it was signed in reliance on a false statement made to the testator. For example, if the testator was told the document being signed was a deed, when it was really a will, it could be contested on the basis of fraud.
A will may be contested if the testator was under undue influence at the time of the will’s execution. There are two methods that can be used to prove undue influence in Wisconsin.
The first method to prove undue influence in Wisconsin is a 4-prong test (the “classic” test):
1. The testator was susceptible to undue influence (i.e. due to age, personality, mental and physical health, etc.).
2. There was opportunity to influence.
3. There was disposition to influence (more than a desire to obtain a share of the estate, it implies grasping or overreaching and a willingness to do something wrong or unfair).
4. A coveted result was achieved (was a person, for no apparent reason, favored in the will to the exclusion of someone who is a natural object of the testator’s bounty).
The second method to prove undue influence in Wisconsin is a 2-prong test:
1. A confidential or fiduciary relationship existed between the testator and the favored beneficiary (a parent/child relationship alone is not enough to establish a confidential relationship).
2. Proof of suspicious circumstances surrounding the making of the will, such as:
Beneficiary’s involvement in procurement of the will
Haste with which the will was prepared
Misrepresentation about will’s contents by beneficiary
Total omission of natural objects of testator’s bounty
Beneficiary taking possession of original will after execution
Beneficiary providing translation to scrivener
Beneficiary excluding family from information or contact with testator until after death
Burden of Proof
The proponent of a will has the initial burden to establish that (a) it is the testator’s last will, (b) the formality in execution requirements were met, and (c) the decedent had testamentary capacity. Then the burden shifts to the opponent of the will to prove their objection by clear, satisfactory and convincing evidence, which is rebuttable by the proponent. However, if three of the four elements of the classic test are proved by clear, satisfactory and convincing evidence, only “slight additional evidence” is required for the fourth element.
No Contest Clauses (In-Terrorem Clauses)
A no-contest clause (otherwise known as an in-terrorem clause) generally provides that if an heir challenges a will unsuccessfully, they will be penalized and perhaps disinherited entirely. However, in many states, a no-contest clause is unenforceable if the contest is based on probable cause or in good faith.
For example, Wis. Stat. § 854.19 provides: “A provision in a governing instrument that prescribes a penalty against an interested person for contesting the governing instrument or instituting other proceedings relating to the governing instrument may not be enforced if the court determines that the interested person had probable cause for instituting the proceedings.”
 Will of Freitag, 9 Wis. 2d 315, 318, 101 N.W.2d 108 (1960)
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