In Wisconsin, the qualifications for a witness to a will are set by Wisconsin Statutes § 853.07 and the execution requirements in § 853.03. A witness must be competent to testify in court at the time the will is executed, and later incompetency (for example, illness or incapacity occurring after the signing) does not invalidate the will if its execution can otherwise be proved. The witness must sign the will within a reasonable time after, and in the witness’s conscious presence, seeing the testator sign the will, hearing the testator acknowledge the signature on the will, or hearing the testator acknowledge that the document is the testator’s will. The witness signs as one of at least two witnesses, and the witnesses do not have to observe the signing or acknowledgment at the same time; each may witness it separately.
Wisconsin permits an interested person (such as a beneficiary) to serve as a witness, and a will is not invalid solely because it was witnessed by an interested person. However, if a witness (or the witness’s spouse) receives a gift under the will, that gift may be reduced to the amount the witness would have received under Wisconsin’s intestacy laws unless the will was also signed by two disinterested witnesses or there is sufficient evidence that the testator intended the witness to receive the full gift. A witness is considered “interested” only if the will gives the witness or the witness’s spouse a personal and beneficial interest; merely being nominated as a personal representative or trustee, with customary compensation for those services, does not make the witness interested.
Remote witnessing is allowed in Wisconsin using two-way, real-time audiovisual communication, but only if the detailed statutory requirements are met, including supervision by a Wisconsin-licensed attorney and compliance with the procedures in § 853.03(2)(c).
As a practical matter, the best practice is to use two disinterested adult witnesses who are competent to testify and who receive no benefit under the will, to minimize the risk of disputes about the validity of gifts or probate of the will.
If you would like to discuss this matter more thoroughly, please reach out to our Madison Wisconsin Estate Planning attorneys. We are here to help!