Building off of what I wrote in the last installment of Wills 101 about the invalidity of handwritten, unattested wills, i.e. holographic wills, I want to elaborate on what is known as the attestation requirement. What is attestation? Attestation is the act whereby a person witnesses the creation of a will and signs the physical document, attesting to its authenticity. What this means is that a will needs to be witnessed and signed by the witnesses in order to be valid. While all states require that wills be witnessed, they differ in regards to what attestation requires. Any attorney will tell you that Wisconsin’s attestation requirement is found in section 853.03(2)(am) which states that a will “must be signed by at least 2 witnesses.” The witnesses need to sign the will in the testator’s presence, and each must observe the testator sign the will; however witnesses do not need to sign in each other’s presence. What does it mean to be in the testator’s presence? A witness and a testator are said to be in each other’s “presence” as long they are nearby and as long as each has a general awareness and cognizance of the where other is and what they are doing. Who is qualified to serve as a witness? Anyone deemed mature enough and of requisite mental capacity to appreciate and understand what they are witnessing is competent to be a witness.
~Rod
Brown Legal Group 