Wills differ from most legal documents in that the person making the will, known in legal terms as the “testator,” is not around when the document is executed. This is why all states, including Wisconsin, require at least two people to witness the testator signing a will. If any dispute arises later over the validity of the will, the witnesses can testify in court as to the fact that the testator signed the document in question.
Actually, under Wisconsin law the witnesses do not necessarily have to see the testator sign his or her will. The law considers a witnessing valid if any of the following circumstances apply:
- The testator signs the will in the presence of the witness.
- The testator gives “implicit or explicit acknowledgment” of a prior signature in the presence of the witness.
- The testator gives “implicit or explicit” acknowledgment of the will itself in the presence of the witness.
As long as two people witness the will under any of these conditions–and sign an acknowledgment to that effect–the will is considered valid. The witnesses may sign their acknowledgments at different times. They may serve as witnesses within a “reasonable time” after any of the events described above take place. Of course, ideally a testator should execute a will in the presence of both witnesses at the same time to avoid any confusion.
Can Someone Witness Your Will Outside of Your Presence?
The one critical thing to keep in mind is that the witness must actually be in your “conscious presence.” That is to say, a person cannot legally witness your will unless they are within visual, hearing, or other “sensory” distance of you at the time you sign or acknowledge the will.
Here is an example to help illustrate this point. In a 2012 Wisconsin probate case, a testator allegedly signed a will in 2008 in the presence of his son. The son witnessed the will. The son then took the will back to his house–over a mile away–and asked his wife to serve as the second witness. The wife never spoke to her father-in-law about the will.
Under these circumstances, the Wisconsin Court of Appeals said the will was invalid. The reason for this was simple: The wife was never a valid witness, as she was never in the “conscious presence” of the testator.
Get Help from a Madison Estate Planning Attorney
The estate lawyers of Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. We invite you to to request a consultation with one of our experienced attorneys.