Wills 101: Witnesses

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

 

Wills 101: Holographic Wills

When considering writing a will, some people might wonder whether they can create a valid will by, say, tearing out a piece of notebook paper and writing thereupon something to the effect of “My name is X and this is my final will and testament. Upon my death, I will all of my property to Y”, signing it, and stashing it away in a desk drawer.  Such a document is called a “holographic will”; it is a document that is written entirely in the testator’s own handwriting with no attesting witnesses.

The answer to this question is that, while over half of the states will give effect to such documents, Wisconsin does not.  In the Badger State, a will must be witnessed in order to be valid.  However, Wisconsin law does make an exception for holographic wills that were drafted in another jurisdiction and that were valid under the laws of that jurisdiction.  Therefore, Wisconsin courts will recognize and probate a holographic will that was written in another state, as long as it was created in accordance with the laws of that state.

Take it from an estate planning attorney, this stuff is important!

Greetings!

Hello all,

My name is Rod Streicher and I am excited to be an attorney at the Brown Legal Group in Appleton.  First of all, a few things about myself.  I am a native of the Fox Valley currently living in Menasha.  I received my BA in Political Science from UW-Madison in 2008 and my J.D. from Cornell University in 2012.

A former prosecutor, I specialize in criminal matters .  As a criminal defense attorney, I am passionate about fighting for good people that may have made unfortunate decisions.  While the bulk of my experience is in criminal law, I also do work in estate planning  (wills, trusts, etc.) and mental health law.

I see this blog as an excellent opportunity to interact with the community on a wide variety of legal and non-legal topics.  My contributions will foreseeably center around matters of criminal and constitutional law issues, however, I may occasionally weigh in on matters dealing with estate planning and family law.  Finally, as a dedicated fan of both the Badgers and Packers, I plan on dedicating weekly posts, hopefully the day after each game, to discussing and commenting each game. If you are interested in learning more about our practice or simply keeping updated on what’s going on with the firm, be sure to ‘like’ us on Facebook and follow us on Twitter.

~Rod