CHAPTER XXVIII.

WILLS.

SECTION I.

WRITTEN WILL S.

In general.-Having acquired property, the owner can dispose of it not only to take effect during his lifetime, but may also designate to whom it shall go after his death. Such a disposition of property is made by will or a "last will and testament." The right to dispose of property in this way has been and is recognized throughout the civilized world. A will, therefore, is the disposition of one's property to take effect after death. When a will is wholly written by the testator himself, it is called a holographic will. An unwritten will is called a nuncupative will; such a will must be declared with the formalities required by the statutes. A codicil is a writing changing the provisions of a will and must be executed with the same formalities as a will. A will may be left with the county judge for safekeeping.

The subject is one of great importance and reliable legal advice should always be sought in drawing and executing wills containing clauses creating trusts, gifts to charitable institutions, etc., and other intricate provisions. Such will, therefore, not be discussed in this chapter. There are many cases in the books where able lawyers have failed in making their own wills, when intricate clauses have been inserted.

A will can be changed or entirely revoked before the death of the person who made it. It is an ambulatory instrument and is absolutely under the control of the testator during his life. But a will may also partake of the nature of a contract, as joint or mutual wills by two or more persons, in which case it may not be revocable. A gift of personal property by will is called a bequest; one of real property, a devise.

Who may make a will.-In Wisconsin, every person of

full age and every married woman of the age of eighteen years and upward, being of sound mind, may dispose of both real and personal property by last will and testament. Whether the testator had a "sound mind" must be established by the facts of each case. The test of testamentary capacity adopted in this state, and which has been applied in numerous cases by our supreme court is: "It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearing of his will. He must have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment concerning them." The testator must comprehend when he executes the will, the relation he sustains to the various individuals who might naturally be expected to become the objects of his bounty and must be capable of making a rational selection among them. "It is essential that the testator shall understand the nature of the act and its effects; shall be able to comprehend and appreciate the claims which he ought to regard and satisfy; and that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it, which, if his mind had been sound, would not have been made.” A person may be insane and still have lucid intervals and a will made during such interval is valid. A person may be of unsound mind as to one or a particular class of subjects, and this will not prevent his making a valid will if otherwise sane and understanding the matter in hand, but when it appears that the will is a direct offspring of this morbid affection, the will will be invalid. Ability to attend to ordinary business transactions is evidence of testamentary capacity. Odd views on any subject, eccentricities, unusual religious beliefs, etc. will not bar one from making a will. "The line between unfounded and unreasonable suspicions of the sane mind and insane delusion is sometimes quite indistinct and difficult to be defined." Old age alone will not bar one from making a will, unless accompanied by a wearing away of the mental

faculties in general, and especially the memory, termed senile dementia.

Undue influence.--Many wills are attacked on the ground that some person influenced the testator when he made his will to such an extent that the will is not the expression of the will of the testator but of another person. "Undue influence, legally speaking, must be such as in some measure destroys the free agency of the testator; it must be sufficient to prevent the exercise of that discretion which the law requires in relation to every testamentary disposition. It is not enough that the testator is dissuaded, by solicitation or argument, from disposing of his property as he had previously intended; he may yield to the persuasions of affection or attachment, and allow their sway to be exercised over his mind; and in neither of these cases would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion; it must constrain its subject to do what is against his will, but which, from fear, the desire of peace, or some other feeling, he is unable to resist; and when this is so, the act which is the result of that influence is vitiated." In another case our supreme court has said that "undue in fluence is a subtle species of fraud, whereby mastery is obtained over the mind of the victim by insidious approaches, seductive artifices, or other species of circumvention. From the very nature of such influence, the evidence, generally, is wholly or almost wholly circumstantial. The questions to be considered are not confined to the conduct of the favored legatee and his friends, constituting the alleged undue influence, but extend to the susceptibility of the testator to the peculiar influences brought to bear upon him, and his capacity to discover and resist such approaches and importunities. The previous relations, friendships, and intercourse between the testator and the several parties concerned, as well as the circumstances under which the will was executed, are important to be considered."

Execution. It is provided by statute in Wisconsin: "No will made within this state since the first day of January, 1896, except such nuncupative wills as are mentioned in this chapter, shall be effectual to pass any estate, whether real or personal, or to charge or in any way affect the same unless it be in writing and signed by the testator or by some person in his presence and by his express direction, and attested and

subscribed in the presence of the testator by two or more competent witnesses in the presence of each other: if the witnesses are competent at the time of such attesting, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved."

"A last will and testament executed without this state in the mode prescribed by the law either of the place where executed or of the testator's domicile shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state; provided, said last will and testament is in writing and subscribed by the testator; and provided, further, that this section shall not affect such nuncupative wills as are mentioned in this chapter."

The word "devise" is used in making gifts of real property, and bequeath"when making gifts of personal property. No particular form is necessary in order to constitue an instrument a will, so long as the statutory requirements have been complied with, and these are: (1) The will must be in writing, (2) signed by the testator or some person in his presence and by his express direction, (3) attested and subscribed in the presence of the testator by two or more competent witnesses in the presence of each other. It is not necessary that the testator should affix his signature in the presence of the witnesses, although such is the usual practice. It is sufficient if another person signs the name of the testator to the will in the latter's presence and by his express direction or if the testator affixes his mark thereto. But the will must be attested and subscribed in the conscious presence of the testator, that is, so he may, if he choose, see the act of subscribing. If the testator be in a position where, by the mere act of volition, and without materially changing his position, he can witness the attestation, it is sufficient. There must also be some word spoken or some act done by the testator in the presence of the witnesses, showing that the instrument was intended by him to be witnessed by them--something equivalent to a request--but no express request by the testator to the witnesses to sign the will as witnesses thereto, is necessary. If they sign in his presence, and without objection on his part, he knowing the fact that they are signing as witnesses, it is sufficient. The witnesses must not only sign in

the presence of the testator, but also in the presence of each other. This is necessary since 1895. If the witnesses sign the will in the absence of the testator and later show their signatures to him and he approves the act, this is not sufficient. The witnesses should sign after the testator, but in the absence of clear proof that the witnesses signed before the signing by the testator, it will be presumed that the testator signed first. The witnesses need not know the nature of the instrument witnessed by them and the testator need not make known the fact that he is executing his will. If a schedule is referred to definitely in a will and attached to the same, it is a part of it, they together forming one instrument. An attestation clause is not only prima facie evidence that the instrument was properly executed, but it raises a strong presumption that it was so executed and such presumption can only be overcome by clear and satisfactory proof to the contrary. Hence the importance of a comprehensive attestation clause. If the witnesses are dead before the probate of the will, mere proof that the attesting signatures are their handwriting, will establish the will, and the rule would be the same although the signatures of the witnesses were not preceded by any attestation clause or certificate. It is, therefore, not necessary that the witnesses should have a recollection of attesting the will. There is a strong presumption in favor of regularity. A will not in the language of the testator is valid if he knew the contents of the same.

Witnesses to will not to take under it.-"All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two others competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to the will."

When devise to witness saved. "But if such witness, to whom any beneficial devise may have been made or given, would have been entitled to any share of the estate of the testator in case the will was not established, then so much of the share that would have descended or been distributed to such witness as will not exceed the devise or bequest made to him in the will shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them."