The Capacity Continuum

            Who can make a will in Wisconsin?  “Any person of sound mind 18 years of age or older may make and revoke a will.”[1]  Though “sound mind” is undefined, Wisconsin law offers other indications, asking whether a testator has testamentary capacity to execute a will.  Testamentary capacity consists of three elements:

1.       The testator (the one making a will) must have mental capacity to comprehend the nature, the extent, and the state of affairs of his or her property.  Perfect memory is not required.

2.       The testator must know and understand his or her relationship to persons who are or who might naturally or reasonably be expected to become the objects of his or her bounty from which he or she must be able to make a rational selection of beneficiaries.

3.       The testator must be able to contemplate the first two elements together for a sufficient length of time, without prompting, to form a rational judgment in relation to them, the result of which is expressed in the will.[2]

            Wisconsin law is generously-disposed toward those who would make a will.  The law presumes that a testator is both sane and has sufficient mental capacity to make a will.[3]  The law also recognizes that even though a person may be incompetent to make a will at one point in time, he or she may be sufficiently competent during a lucid interval between periods of sickness.[4]  Also, a legal guardianship, in and of itself, does not establish a lack of testamentary capacity[5]; the courts have distinguished the test for guardianship and the test for the disposition of property by will.[6] 

            What’s more, the analysis can be more nuanced than simply asking, yes or no, whether the testator had the requisite capacity.  The Wisconsin Supreme Court recognizes a continuum of capacity: “A testator may not have the testamentary capacity to make a complicated will and yet have the necessary capacity to make a simple will. The test is whether he [or she] had the mental ability to make the specific will in question.”[7] While there are no bright lines here, the clear aim is to honor the will of a testator, even where the capacity exists only for a “simple will.”

            The takeaway is obvious: if you are of age, and have the capacity to make a will, even a “simple will,” don’t wait until it’s too late – Wisconsin law supports you!

[1] Wis. Stat. § 853.01.

[2] O'Loughlin's Estate, In re, 50 Wis.2d 143, 146-147 (Wis., 1971).

[3] See Olszewski v. Borek (In re Szperka's Will), 254 Wis. 153, 35 N.W.2d 209 (Wis., 1949).

[4] Whitney v. Brownewell, 68 Wis. 372, 32 N.W. 287 (Wis., 1887). 

[5] In Matter of Estate of Sorensen, 87 Wis. 2d 339, 274 N.W.2d 694 (1979).

[6] O'Loughlin's Estate, 50 Wis.2d 143, 147.

[7] Gaudynski's Estate, In re, 175 N.W.2d 272, 46 Wis.2d 393, 396 (Wis., 1970).