When someone passes away their estate must go through a court-supervised administration process. In Wisconsin, probate cases are handled by the circuit court system which serves as the probate court. If there is a will, the first step in the process is for the decedent’s will to be filed with the court along with a petition for probate. Property cannot be legally passed to beneficiaries unless the will has been probated. Wis. Stat. Ann. § 856.13. Probating a will means proving that it is valid.
Most wills that are submitted for probate in Wisconsin are not contested. The judge will grant probate of an uncontested will as long as one of the witnesses executes a sworn statement in court that the testator was of sound mind, was the proper age, and was not under restraint at the time of execution. Wis. Stat. Ann. § 856.15. However, if someone believes that the will is not valid, they can object to it being admitted to probate and initiate a will contest.
Who Can Contest It Will in Wisconsin
A will cannot be contested by just anyone who chooses to. To contest to a will, the objectant must have an interest in the proceeding. This is called having legal “standing.” A person who has standing, also referred to as an “interested person,” has an immediate and direct monetary interest in the matter. Wis. Stat. Ann. § 851.21. Those who have standing include heirs of the decedent, beneficiaries of the will, trustees of trusts named as beneficiaries, and beneficiaries of trust created by the will.
Procedure for Contesting a Will in Wisconsin
To initiate a will contest, the objectant must submit an objection at the hearing that follows the filing of the will along with the petition for probate. A will contest cannot be initiated until a will has been filed with the probate court and admitted to probate. The objectant must then file a written objection with the same probate court. The objection must state the reasons for the objection.
Grounds for Contesting a Will in Wisconsin
In addition to having standing, to contest a will you must allege legally sufficient grounds for the challenge. The grounds must be more than being upset for being disinherited. There are specific reasons that a court will invalidate a will, including:
- The testator did not have the capacity. A testator must be at least 18 years old and must be mentally competent at the time that they executed the will for the will to be valid. Wis. Stat. Ann. § 853.01
- The testator was under undue influence. If someone exerts illegal influence over the testator in order to persuade them to make a will that the testator would not have otherwise made, the will would be invalid due to undue influence. Typically, the testator would be physically or mentally vulnerable and reliant on the influencer.
- The will was improperly executed. To be valid, a will must meet certain requirements. The will must in writing, it must be signed by the testator or by another person at the direction of the testator and in the testator’s presence, and it must be signed by 2 witnesses. Wis. Stat. Ann. § 853.03
- There is a more recent version of the will. If the will that was filed with the petition for probate is not the most recent executed will, it would not be valid. A later executed will revokes a prior will.
Consequences of a Will Contest in Wisconsin
If a will contest is successful, then the probate court will not admit the invalidated will to probate. If there is a prior will that is valid, the court will probate it. Otherwise, the court will declare the decedent to be intestate. As a result, the personal representative will be required to distribute to the decedent’s heirs according to Wisconsin’s intestate succession laws. Wis. Stat. Ann. § 852.01. Instead of the decedent’s property going to those specified in the will which might include family, friends, and institutions, the property will only go to relatives based on a statutory order of priority that starts with the decedent’s surviving spouse and children, if any.
No Contest Clauses in Wisconsin Wills
A “no contest clause” which is also referred to as a “penalty clause” or an “in terrorem clause” is a provision in a will that makes testamentary gifts conditioned on the recipient agreeing not to contest the will. Testators include no contest clauses to discourage beneficiaries from trying to circumvent their wishes by attempting to invalidate the will.
While penalty clauses are valid in Wisconsin, probate courts can override a penalty clause if it determines that the objectant’s concerns are valid. Wis. Stat. Ann. § 854.19