Detailed Answer

Scope and disclaimer: This article explains what kinds of evidence are commonly used in Wisconsin probate contests to show undue influence or lack of testamentary capacity. This is educational information only and not legal advice. If you face a will dispute you should consult a Wisconsin attorney who handles probate litigation.

How Wisconsin treats wills and challenges

Wisconsin law recognizes a properly executed will as valid on its face. A party who wants to overturn a will must produce sufficient evidence to overcome that presumption of validity. For statutory material on wills in Wisconsin, see the Wisconsin statutes on wills: Wis. Stat. ch. 853 (Wills).

What the court looks for when evaluating capacity

“Testamentary capacity” means, at the moment the will was signed, the person (the testator) understood enough to make a will. The elements courts commonly consider are whether the testator:

• knew the nature and effect of signing a will (that the document disposes of property on death);
• knew the general nature and extent of his or her property;
• knew the natural objects of his or her bounty (close family and those who would ordinarily inherit); and
• was able to form and express an orderly plan for distributing property — not controlled by a fixed delusion or severe impairment of reason.

Evidence that supports capacity includes contemporaneous medical records, physician or treating-provider notes, cognitive test results (e.g., MMSE, MoCA, neuropsychological testing), sworn witness statements from people who spoke with the testator near the signing, and video or audio recordings of the testator speaking coherently about property and relationships.

What the court looks for when evaluating undue influence

Undue influence happens when someone exerts pressure or control over the testator so the will reflects the influencer’s wishes rather than the testator’s independent intent. Courts examine the totality of circumstances. Typical factors include:

• the testator’s vulnerability (age, illness, dementia, dependence on caregiver, medication effects);
• the influencer’s opportunity and access to the testator (was the influencer isolated with the testator?);
• a confidential or dependent relationship (caregiver, close companion who controlled daily life or finances);
• whether the influencer procured or drafted the will, coached witnesses, or arranged the signing;
• unusual or unnatural dispositions in the will (large gifts to a recent companion or caregiver while excluding family who previously were included); and
• evidence of coercion, threats, intimidation, or manipulatory tactics.

Evidence of undue influence may be circumstantial (patterns, timing, suspicious circumstances) as well as direct (admissions, messages, or witness testimony). The stronger the showing that a dependent testator acted under domination or coercion, the more likely a court will set aside a contested will.

Types of evidence that carry weight in Wisconsin probate contests

• Medical records and provider testimony: doctor notes, hospital records, diagnoses (dementia, delirium), medication lists, and emergency-room records showing cognitive impairment.
• Neuropsychological testing: formal cognitive testing close in time to the will-signing; expert testimony explaining how test results affect testamentary capacity.
• Witness affidavits and testimony: statements from whoever attended the will signing, family members, friends, clergy, home health aides, or neighbors about the testator’s mental state and the circumstances of signing.
• Documentary evidence and communications: drafts of the will, emails, texts, voicemail, letters, and social-media posts that show intent, planning, or coercion.
• Financial records: bank and transfer records showing sudden financial changes, coerced gifts, or payments to a caregiver or beneficiary around the time of the will change.
• Handwriting and document-forgery analysis: if there is a dispute about signatures or alterations.
• Video or audio recordings: recordings of the testator discussing the will, property, or relationships can be powerful if admissible.
• Evidence about the drafter or facilitator: whether a beneficiary prepared the will, paid for it, or arranged the witnesses — especially when the will benefits that same person.
• Prior wills and a timeline of changes: a series of wills showing a sudden, unexplained change in disposition can be suspicious and support a claim of undue influence or lack of capacity.

Procedural and practical considerations

Timing matters. Preserve evidence quickly: request medical records, secure original documents, collect electronic communications, and interview witnesses while memories are fresh. Conservatorship/guardianship or prior incapacity determinations can be relevant, as can prior or ongoing malpractice or criminal investigations involving a caregiver.

A will contest generally begins by filing an objection in probate court after the will is submitted for probate. Courts will consider all admissible evidence and typically weigh direct and circumstantial proof together.

Burden and standard of proof

Wisconsin courts begin with a presumption that a duly executed will is valid. A challenger must produce sufficient proof to rebut that presumption. Courts often require a strong evidentiary showing to set aside a will for lack of capacity or undue influence, and many Wisconsin decisions describe the evidence standard as clear, satisfactory, and convincing in close cases. Because standards and case law evolve, talk to a Wisconsin probate lawyer about how courts in your county currently apply the law.

Common defenses to undue influence or incapacity claims

• Evidence that the will was properly executed and witnessed.
• Independent advice — the testator had separate counsel or a neutral attorney explained the will.
• Consistent estate plan over time — the contested will mirrors prior expressed wishes.
• Medical evidence showing capacity at the time of signing.

What to do next if you suspect undue influence or lack of capacity

1. Immediately ask the probate court clerk about deadlines (statutes of limitations and filing windows vary).
2. Preserve originals: secure the will, medical records, device data, and any recordings.
3. Document witnesses: get written statements and contact information for anyone present at or near the signing.
4. Seek legal counsel: a probate litigator can evaluate your evidence, advise on timing and burden, and help gather expert testimony.

Helpful Hints

• Collect contemporaneous medical records as soon as possible — hospitals and clinics often destroy old files or require time to produce records.
• Ask family, friends, and care providers for written recollections of conversations with the testator about the will or property.
• Preserve electronic evidence: emails, text messages, voice mails, and social media posts can show who influenced planning and when changes occurred.
• Note suspicious timing: major will changes soon after a new caregiver moves in, after hospitalizations, or after the testator becomes isolated often increases the likelihood of successful challenges.
• Do not delay—probate contests have strict deadlines and evidence gets weaker with time.
• Maintain professionalism and avoid making public accusations without counsel — improper conduct can make disputes harder to resolve.

Where to read the statutes: Review the Wisconsin statutes on wills here: Wis. Stat. ch. 853 (Wills). For procedural rules in probate, see the Wisconsin statutes governing probate procedure and practice or consult a probate attorney.

Remember — this is general information, not legal advice. If you need to challenge or defend a will in Wisconsin, talk with an attorney who handles contested probate matters right away.