853.13 Contracts.
(1) A contract to make a will or devise, not to revoke a will or devise or to die intestate may be established only by any of the following:
(a) Provisions of a will stating the material provisions of the contract.
(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.
(c) A valid written contract, including a marital property agreement under s. 766.58 (3) (e).
(d) Clear and convincing extrinsic evidence.
(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
History: 1995 a. 225; 1997 a. 188.
The existence of an irrevocable contract does not prevent the making of a later will or its admission to probate. The remedy is an action in equity to enforce the contract. Estate of Schultz, 53 Wis. 2d 643, 193 N.W.2d 655 (1972).
Whether clear and convincing evidence of a contract exists is a fact to be found by the trial court and given deference by an appellate court. Estate of Czerniejewski, 185 Wis. 2d 892, 619 N.W.2d 702 (Ct. App. 1994).
NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to this section.
Joint and mutual wills. Kroncke, 43 WBB, No. 5.
Contracts to make joint or mutual wills. O'Donnell, 55 MLR 103.