Detailed Answer
Short answer: In Wisconsin you can still ask the circuit court to open probate even if the original will is being withheld. Start by demanding the original, gather supporting evidence (copies, witness affidavits, attorney records), then file a petition to admit the will or to compel its production. The court can admit a copy or take enforcement steps if someone improperly withholds the original.
Important disclaimer: This is general information only and not legal advice. For advice about your specific situation, contact a Wisconsin probate attorney.
Where to file
Probate matters are filed in the Wisconsin Circuit Court in the county where the decedent was domiciled at the time of death. See general Wisconsin court information at the Wisconsin Court System: https://www.wicourts.gov.
Step-by-step actions to take
- Make a written demand for the original will. Send a dated, written request to your step-sister (keep a copy). If an attorney drafted the will, contact that attorney and ask whether they hold a copy or can demand the original.
- Gather all secondary evidence. Collect any photocopies or scanned copies of the will, emails or letters showing the will’s terms, the name of the lawyer who drafted it, and the names and contact information of any attesting witnesses or the notary. Also obtain the death certificate.
- Obtain witness affidavits. Ask the attesting witnesses (the people who signed the will with the testator) or other witnesses who saw the testator sign or discussed the will’s contents to sign sworn affidavits about what they remember. Those affidavits are crucial if the original cannot be produced.
- Try to resolve informally. Offer to meet at the attorney’s office or the clerk of court to inspect or hand over the original. If the person is represented by counsel, direct communications to that attorney.
- If the original is still withheld, file in court. File a petition in the circuit court to admit the will to probate. Explain the missing original and attach copies and affidavits. In Wisconsin the court can accept secondary evidence when an original cannot be produced, but you will need to explain why the original is not available and present evidence of the will’s contents and execution. For statutory guidance on wills generally, see Wis. Stat. ch. 853: https://docs.legis.wisconsin.gov/statutes/statutes/853.
- Ask the court to compel production or impose sanctions if appropriate. If someone refuses to produce the original after being properly noticed or after a court order, you can move the court for an order compelling production or for contempt. The court may also consider other remedies if the original was destroyed, concealed or tampered with.
- Be ready to prove the will’s validity without the original. Courts typically require solid proof about the will’s terms and that it was properly executed. That proof can include sworn testimony from attesting witnesses, copies of the will, the attorney’s file, and credible testimony explaining why the original is missing.
What the court will look for
- Evidence that the decedent actually executed a will with the terms you claim.
- Evidence explaining why the original is not produced (lost, destroyed, withheld).
- Affidavits or testimony from attesting witnesses who saw the signature and signing ceremony.
- Any contemporaneous copies, drafts, electronic files or attorney records showing the final document.
Possible court outcomes
- The court admits a copy of the will to probate after reviewing the evidence.
- The court orders the person holding the original to produce it or face sanctions or contempt.
- The court finds insufficient proof and refuses to admit the will; intestacy rules would then apply.
Practical considerations and timing
Act promptly. Probate actions should be started soon after death so assets can be handled and creditors notified. Even if there is no rigid short statute of limitations for admitting a will, delay can make evidence fade and witnesses harder to find.
When to consider legal help
If the person withholding the original refuses to cooperate, or if the estate is large or has conflicts, consider retaining a probate attorney. A lawyer can prepare the petition, collect and present affidavits, request subpoenas, and pursue court enforcement if needed. You may also ask the court to appoint a personal representative or special administrator if necessary to protect estate assets while the dispute is resolved.
For statutory guidance on wills and probate procedure, see the Wisconsin statutes on wills: Wis. Stat. ch. 853, and general Wisconsin court information at https://www.wicourts.gov. (These links provide a starting point; an attorney can point you to the specific sections and forms that apply to your case.)
Helpful Hints
- Keep all communications in writing and keep copies (letters, emails, certified mail receipts).
- Get sworn affidavits from anyone who saw the testator sign or who discussed the will’s content with the testator.
- Contact the lawyer who prepared the will—many attorneys keep the original or a certified copy and can provide helpful records.
- Preserve electronic evidence (scans, emails, file timestamps) that show the will’s content and dates.
- File promptly with the circuit court in the county where the decedent lived; do not wait for a perfect case before starting probate.
- If you fear the original may be destroyed or concealed, ask a court for expedited relief or seek an order to protect estate property.
- Consider mediation if family members are open to negotiation—sometimes the threat of litigation pushes parties to cooperate.
- Remember: possession of the original document may be persuasive but it is not the only way to prove a will.
Final note: This article explains general Wisconsin procedure for dealing with a withheld original will. It is not a substitute for legal advice. A local probate attorney can evaluate your facts, prepare the necessary filings, and represent you in court.