Chapter 6 - Wills - Wyoming Statutes

WYOMING STATUTES AND CODES

Chapter 6 - Wills

CHAPTER 6 - WILLS

ARTICLE 1 - IN GENERAL

2-6-101. Right to make and dispose; exception.

Anyperson of legal age and sound mind may make a will and dispose of all of hisproperty by will except what is sufficient to pay his debts, and subject to therights of the surviving spouse and children.

2-6-102. All property deemed passed; "property" defined.

Awill is construed to pass all property which the testator owns at his deathincluding property acquired after the execution of the will, unless a contraryintention is indicated by the will. "Property", as used in thissection, includes both real and personal property, or any interest therein, andmeans anything that may be the subject of ownership.

2-6-103. Property passed may be governed by trust instrument.

Bya will signed and attested as provided in this article a testator may deviseand bequeath real and personal estate to a trustee of a trust which isevidenced by a written instrument in existence when the will is made and whichis identified in the will, even though the trust is subject to amendment,modification, revocation or termination. Unless the will provides otherwise theestate so devised and bequeathed is governed by the terms and provisions of theinstrument creating the trust including any amendments or modifications inwriting made before or after the making of the will and before the death of thetestator.

2-6-104. Law governing meaning and effect.

Themeaning and legal effect of a disposition in a will is determined by the law ofthe state in which the will was executed, unless the will otherwise provides orunless the application of that law is contrary to the public policy of thisstate otherwise applicable to the disposition.

2-6-105. Rules of construction and intention.

Theintention of a testator as expressed in his will controls the legal effect ofhis dispositions. The rules of construction expressed in the succeedingsections of this article apply unless a contrary intention is indicated by thewill.

2-6-106. Antilapse; deceased devisees; class gifts.

Ifa devisee who is a grandparent or a lineal descendent of a grandparent of thetestator is dead at the time of execution of the will, fails to survive thetestator, or is treated as if he predeceased the testator, the issue of thedeceased devisee take in place of the deceased devisee and if they are all ofthe same degree of kinship to the devisee they take equally, but if of unequaldegree then those of more remote degree take per stirpes. One who would havebeen a devisee under a class gift if he had survived the testator is treated asa devisee for purposes of this section whether his death occurred before orafter the execution of the will.

2-6-107. Failure of a testamentary provision.

(a) Except as provided in W.S. 2-6-106, if a devise other thana residuary devise fails for any reason, it becomes a part of the residue.

(b) Except as provided in W.S. 2-6-106, if the residue isdevised to two (2) or more persons and the share of one (1) of the residuarydevisees fails for any reason, his share passes to the residuary devisee, or toother residuary devisees in proportion to their interests in the residue.

2-6-108. Specific devise of securities; accessions; nonademption.

(a) If the testator intended a specific devise of certainsecurities rather than the equivalent value thereof, the specific devisee isentitled only to:

(i) As much of the devised securities as are a part of theestate at time of the testator's death;

(ii) Any additional or other securities of the same entity ownedby the testator by reason of action initiated by the entity excluding anyacquired by exercise of purchase options;

(iii) Securities of another entity owned by the testator as aresult of a merger, consolidation, reorganization or other similar actioninitiated by the entity; and

(iv) Any additional securities of the entity owned by thetestator as a result of a plan of reinvestment.

(b) Distributions prior to death with respect to a specificallydevised security not provided for in subsection (a) of this section are notpart of the specific devise.

2-6-109. Nonademption of specific devises where sold by conservator;exception; rights of specific devisee.

(a) If specifically devised property is sold by a conservator,or if a condemnation award or insurance proceeds are paid to a conservator as aresult of a condemnation, fire or casualty, the specific devisee has the rightto a general pecuniary devise equal to the net sale price, the condemnationaward or the insurance proceeds. This subsection does not apply if after thesale, condemnation or casualty, it is adjudicated that the disability of thetestator has ceased and the testator survives the adjudication by one (1) year.The right of the specific devisee under this subsection is reduced by any righthe has under subsection (b) of this section.

(b) A specific devisee has the right to the remainingspecifically devised property and:

(i) Any balance of the purchase price together with any securityinterest owing from a purchaser to the testator at death by reason of sale ofthe property;

(ii) Any amount of a condemnation award for the taking of theproperty unpaid at death;

(iii) Any proceeds unpaid at death on a fire or casualty insuranceon the property; and

(iv) Property owned by testator at his death as a result offoreclosure, or obtained in lieu of foreclosure, of the security for aspecifically devised obligation.

2-6-110. Exercise of power of appointment.

Ageneral residuary clause in a will, or a will making general disposition of allof the testator's property, does not exercise a power of appointment held bythe testator unless specific reference is made to the power or there is someother indication of intention to include the property subject to the power.

2-6-111. Nonexoneration.

Aspecific devise passes subject to any mortgage, security, interest or lienexisting at the date of death, without right of exoneration, regardless of ageneral directive in the will to pay debts.

2-6-112. Will to be in writing; number and competency of witnesses;signature of testator; subscribing witness not to benefit; exception.

Exceptas provided in the next section, all wills to be valid shall be in writing, ortypewritten, witnessed by two (2) competent witnesses and signed by thetestator or by some person in his presence and by his express direction. If thewitnesses are competent at the time of attesting the execution of the will,their subsequent incompetency shall not prevent the probate and allowance ofthe will. No subscribing witness to any will can derive any benefit therefromunless there are two (2) disinterested and competent witnesses to the same, butif without a will the witness would be entitled to any portion of thetestator's estate, the witness may still receive the portion to the extent andvalue of the amount devised.

2-6-113. Holographic will.

Awill which does not comply with W.S. 2-6-112 is valid as an holographic will,whether or not witnessed, if it is entirely in the handwriting of the testatorand signed by the hand of the testator himself.

2-6-114. Self-proving wills.

(a) Any will may be simultaneously executed, attested and madeself-proven, by the acknowledgment thereof by the testator and the affidavitsof the witnesses, each made before an officer authorized to administer oathsunder the laws of the state where execution occurs and evidenced by theofficer's certificate under official seal, in form and content substantially asfollows:

I, ...., the testator,sign my name to this instrument this .... day of ...., (year), and being firstduly sworn, do hereby declare to the undersigned authority that I sign andexecute this instrument as my last will and that I sign it willingly (orwillingly direct another to sign for me), that I execute it as my free andvoluntary act for the purposes therein expressed, and that I am an adultperson, of sound mind, and under no constraint or undue influence.

Testator....

We, ...., ...., the witnesses, sign ournames to this instrument, being first duly sworn, and do hereby declare to theundersigned authority that the testator signs and executes this instrument ashis last will and that he signs it willingly (or willingly directs another tosign for him), and that he executes it as his free and voluntary act for thepurposes therein expressed, and that each of us, in the presence and hearing ofthe testator, hereby signs this will as witnesses to the testator's signatureand that to the best of our knowledge the testator is an adult person, of soundmind, and under no constraint or undue influence.

Witness .......................

STATEOF WYOMING )

) ss

COUNTYOF -------- )

Subscribed, sworn to and acknowledgedbefore me by ...., the testator, and subscribed and sworn to before me by ....and ...., witnesses, this .... day of .... .

(SEAL) (Signed)--------------

(OfficialCapacity of Officer)------------

(b) The execution of the acknowledgment by the testator and theaffidavits of the witnesses as provided for in this section shall be sufficientto satisfy the requirements of the signing of the will by the testator and thewitnesses under W.S. 2-6-112.

(c) An attested will may at the time of its execution or at anysubsequent date be made self-proven by the acknowledgment thereof by thetestator and the affidavits of the witnesses, each made before an officerauthorized to administer oaths under the laws of this state or under the lawsof the state where execution occurs, and evidenced by the officer's certificateunder official seal, attached or annexed to the will in form and contentssubstantially as follows:

STATEOF WYOMING )

) ss

COUNTYOF -------- )

We, ...., ...., and ...., the testator andthe witnesses, respectively, whose names are signed to the attached orforegoing instrument, being first duly sworn, do hereby declare to theundersigned authority that the testator signed and executed the instrument ashis last will and that he signed willingly or willingly directed another to signfor him, and that he executed it as his free and voluntary act for the purposestherein expressed; and that each of the witnesses, in the presence and hearingof the testator, signed the will as witness and that to the best of ourknowledge the testator was at that time an adult person, of sound mind andunder no constraint or undue influence.

Testator ---------

Witness.....................

Subscribed, sworn to andacknowledged before me by ...., the testator, and subscribed and sworn tobefore me by .... and .... witnesses, this .... day of ...., ... .

(SEAL)(Signed) -------------

(OfficialCapacity of Officer) -----------

2-6-115. Who may witness.

Anyperson generally competent to be a witness may act as a witness to a will.

2-6-116. Validity of execution.

Awritten will is valid if executed in compliance with W.S. 2-6-112 or 2-6-113 orif its execution complies with the law at the time of execution of the placewhere the will is executed, or of the law of the place where at the time ofexecution or at the time of death the testator is domiciled, has a place ofabode or is a national.

2-6-117. Revocation by writing or by act.

(a) A will or any part thereof is revoked:

(i) By a subsequent will which revokes the prior will or partexpressly or by inconsistence; or

(ii) By being burned, torn, cancelled, obliterated or destroyedwith the intent and for the purpose of revoking it by the testator or byanother person in his presence and by his direction.

2-6-118. Revocation by divorce or annulment; effect; revival; otherchanges excluded.

Ifafter executing a will the testator is divorced or his marriage annulled, thedivorce or annulment revokes any disposition or appointment of property made bythe will to the former spouse, any provision conferring a general or specialpower of appointment on the former spouse, and any nomination of the formerspouse as executor, trustee, conservator or guardian, unless the will expresslyprovides otherwise. Property prevented from passing to a former spouse becauseof revocation by divorce or annulment passes as if the former spouse failed tosurvive the decedent, and other provisions conferring some power or office onthe former spouse are interpreted as if the spouse failed to survive thedecedent. If provisions are revoked solely by this section, they are revived bytestator's remarriage to the former spouse. For purposes of this section,divorce or annulment means any divorce or annulment which would exclude thespouse as a surviving spouse. A decree of separation which does not terminatethe status of husband and wife is not a divorce for purposes of this section.No change of circumstances other than as described in this section revokes awill.

2-6-119. Duty of custodian to deliver will; failure to comply; orderto third persons.

(a) Every custodian of a will, within ten (10) days afterreceipt of information that the maker thereof is dead, shall deliver the sameto the clerk of the district court having jurisdiction of the estate or to theexecutor named therein. A failure to comply with the provisions of this sectionmakes the person failing responsible for all damages sustained by anyoneinjured thereby.

(b) If it is brought to the attention of the court that anywill is in the possession of a third person, and the court or the commissionerin vacation is satisfied that the information is correct, an order shall beissued and served upon the person having possession of the will, and if heneglects or refuses to produce it in obedience to the order he may be punishedby the court for contempt.

2-6-120. Notification of executor; disposition where no petitionfiled.

Uponreceipt of a will for filing, with information that the maker thereof is dead,the clerk shall notify the party, if any, named as executor of the will, and asmany of the distributees named therein as may be readily located. If no actionpursuant to W.S. 2-6-121, 2-6-122 or 2-6-201 is taken by any party withinthirty (30) days after the giving of such notice, the clerk shall report thematter to the court and the court may make orders as it deems appropriate forthe disposition of the will.

2-6-121. Petition and procedure for filing of will without probate oradministration.

(a) Concurrently with the filing with the clerk of a will of adeceased person, or at any time thereafter, the executor or any distributeenamed therein may file a sworn petition for filing of the will without probateor administration. The petition shall show:

(i) The date and place of death of the decedent, and county andstate of last residence of the decedent;

(ii) The names, ages and residences of the heirs and devisees ofthe decedent, so far as known to the petitioner;

(iii) That a true copy of the will and a true copy of thepetition have been mailed to each of the heirs and devisees; and

(iv) That, pending possible subsequent action, the petition andthe will are to be filed and indexed by the clerk, without further proceedings.

(b) The clerk shall receive, file and index the petition, andannex the will thereto, and maintain same as part of the permanent files. Nofiling fee shall be charged.

(c) No proceedings under this section may be commenced afterthe filing of a petition under W.S. 2-6-122 or 2-6-201, nor after the entry ofan order by the court pursuant to W.S. 2-6-120 making other provisions for thedisposition of the will.

2-6-122. Petition and procedure for filing and probate of willwithout administration.

(a) Concurrently with the filing with the clerk of a will of adeceased person, or at any time thereafter prior to the filing of a petitionpursuant to W.S. 2-6-201 and prior to the entry of any order by the courtpursuant to W.S. 2-6-120 making other provisions for the disposition of thewill, any party who would be entitled to letters testamentary under theprovisions of W.S. 2-6-208 may file with the clerk a sworn petition for probateof will without administration. The petition shall show:

(i) The date and place of death of the decedent, and county andstate of last residence of the decedent;

(ii) The names, ages and residences of the heirs and devisees ofthe decedent;

(iii) That a true copy of the will and a true copy of thepetition have been mailed to each of the heirs and devisees; and

(iv) That the petition prays for probate of the will, withoutadministration.

(b) A filing fee for the petition shall be charged, equal tothe minimum fee applicable to proceedings under W.S. 2-6-203.

(c) Upon the filing of the petition, proceedings shall be hadas provided in W.S. 2-6-203 through 2-6-206, and order shall issue and noticesbe given as provided in W.S. 2-6-209 if the will is found entitled to probate,except that the order shall not include the appointment of an executor, but recitethat the will is admitted to probate without administration.

(d) After the entry of the order admitting the will to probate,the petitioner shall, at his own expense, cause to be published once a week forthree (3) consecutive weeks in a daily or weekly newspaper of generalcirculation in the county in which the probate was granted a notice insubstantially the following form:

Stateof Wyoming ) In the District Court

) ....Judicial District

Countyof.... ) Probate No. ....

Inthe Matter of the ) Notice of Proof of

Estateof-------------- ) Will Without

Administration

.......,Deceased. )

TOALL PERSONS INTERESTED IN SAID ESTATE:

You are hereby notified that on the ....day of ...., (year), the Last Will and Testament of Decedent was admitted toprobate by the above named court and there will be no present administration ofthe estate. Any action to set aside the Will shall be filed in the Courtwithin three (3) months from the date of the first publication of this notice,or thereafter be forever barred.

Dated...., (year).

Proponent .............

PUBLISH:(once a week for three (3) consecutive weeks)

(e) The provisions of W.S. 2-6-301 through 2-6-306 apply toproceedings under this section.

(f) In the event administration of the estate is desired at anylater date, any party designated in W.S. 2-6-208, in the order of preferenceset forth therein, may petition the court for the issuance of letterstestamentary.

2-6-123. Filing of will, with or without probate not to bar collectionby affidavit.

Noproceedings pursuant to W.S. 2-6-120 through 2-6-122 shall bar any proceedingspursuant to W.S. 2-1-201 through 2-1-203.

2-6-124. Written statement referred to in will disposing of certainpersonal property.

(a) A will may refer to a written statement or list to disposeof items of tangible personal property not otherwise specifically disposed ofby the will, other than money, evidences of indebtedness, documents of title,securities and property used in trade or business. To be admissible under thissection as evidence of the intended disposition, the writing shall:

(i) Be dated;

(ii) Be in the handwriting of the testator or signed by him; and

(iii) Include a description of the items and devisees withreasonable certainty.

(b) The written statement or list may be prepared before orafter execution of the will, and may be altered by the testator after itspreparation which alteration shall be signed and dated by the testator.

(c) The written statement or list may be a writing which has nosignificance apart from the effect upon the disposition made by the will.

ARTICLE 2 - PROCEDURE FOR PROBATE

2-6-201. Contents of petition; defect in jurisdictional statementinconsequential.

(a) A petition for the probate of a will shall show:

(i) The jurisdictional facts;

(ii) Whether the person named as executor consents to act, orrenounces his right to letters testamentary;

(iii) The names, ages and residences of the heirs and devisees ofthe decedent, so far as known to the petitioner;

(iv) The probable value and character of the property of theestate;

(v) The name of the person for whom letters testamentary areprayed.

(b) No defect of form or in the statement of jurisdictionalfacts actually existing shall make void the probate of a will.

2-6-202. Failure of executor to petition; appointment ofadministrator.

Ifthe person named in a will as executor, for thirty (30) days after he hasknowledge of the death of the testator and that he is named as executor, failsto petition the proper court for probate of the will and that letterstestamentary be issued to him, he may be held to have renounced his right toletters and the court may appoint any other competent person administratorunless good cause for delay is shown.

2-6-203. Hearing upon petition; notice not required.

(a) Upon the filing of a petition for probate of a will, thecourt or the clerk may hear it forthwith or at such time and place as the courtor clerk may direct, with or without requiring notice, and upon proof of dueexecution of the will, admit the same to probate.

(b) Notice is not required and there shall be no delay in thehearing, unless good cause appears.

2-6-204. Proof; self-proving will.

Awill executed in compliance with W.S. 2-6-114 shall be probated without furtherproof.

2-6-205. Proof; wills not self-proving.

(a) If the will is not self-proving, proof of a will may bemade by the oral or written testimony of one or more of the subscribingwitnesses to the will. If the testimony is in writing, it shall besubstantially in the following form, executed and sworn to contemporaneouslywith the execution of the will or at any time thereafter, whether before orafter the date of death of the testator:

Inthe District Court of Wyoming

Inand for .................... County

In the Matter of the Estate of) ProbateNo. ....

.... Deceased ) Testimonyof Subscribing

State of .... )ss Witness onProbate of Will

.... County )

I, ...., being first duly sworn, state:

I reside in the County of ...., State of....; I knew the testator on the ... day of ..., (year), the date of theinstrument, the original or exact reproduction of which is attached hereto, nowshown to me, and purporting to be the last will and testament of the said ....;I am one of the subscribing witnesses to said instrument; and on the said dateof said instrument, I knew ...., the other subscribing witness; and saidinstrument was exhibited to me and to the other subscribing witness by thetestator, who declared the same to be his last will and testament, and wassigned by the testator at ...., in the County of ...., State of ...., on thedate shown in said instrument, in the presence of myself and the othersubscribing witness; and the other subscribing witness and I then and there, atthe request of the testator, in the presence of said testator and in thepresence of each other, subscribed our names thereto as witnesses.

Name of witness ....

Address ....

Subscribed andsworn to before me this .... day of...., (year).

Notary Public in and for ....

County of ....

State of ....

(SEAL)

(b) If it is desired to prove the execution of the will bydeposition rather than by use of the affidavit form provided in subsection (a)of this section, upon application the clerk shall issue a commission to someofficer authorized by the law of this state to take depositions, with the willannexed, and the officer taking the deposition shall exhibit it to the witnessfor identification, and, when identified by him, shall mark it as "Exhibit...." and cause the witness to connect his identification with it as suchexhibit. Before sending out the commission the clerk shall make and retain inhis office a true copy of the will.

(c) If all of the witnesses are deceased or otherwise notavailable, it is permissible to prove the will by the sworn testimony of two(2) credible disinterested witnesses that the signature to the will is in thehandwriting of the person whose will it purports to be, and that the signaturesof the witnesses are in the handwriting of the witnesses, or it may be provedby other sufficient evidence of the execution of the will.

2-6-206. Proof; holographic wills.

Anholographic will may be proved the same as any other private writing.

2-6-207. Proof; lost or destroyed will; court may restrain personalrepresentatives pending disposition.

(a) Whenever any will is lost or destroyed, the district courtshall take proof of the execution and validity thereof to establish the same.All the testimony shall be reduced to writing and signed by the witnesses.

(b) No will shall be proved as a lost or destroyed will unlessit is proved to have been in existence at the time of death of the testator, oris shown to have been fraudulently destroyed in the lifetime of the testator,nor unless its provisions are clearly and distinctly proved by at least two (2)credible witnesses.

(c) When a lost will is established, the provisions thereofshall be distinctly stated and certified by the judge, under his hand and theseal of the court, and the certificate shall be filed and recorded as otherwills are filed and recorded, and letters testamentary or of administrationwith the will annexed, shall be issued thereon in the same manner as upon willsproduced and duly proved.

(d) If before or during the pendency of an application to provea lost or destroyed will, letters of administration are granted on the estateof the testator or letters testamentary of any previous will of the testatorare granted, the court may restrain the personal representatives so appointedfrom any acts or proceedings which would be injurious to the legatees ordevisees claiming under the lost or destroyed will.

2-6-208. Order of preference for appointment of executor.

(a) Letters testamentary may be granted to one or more personsfound to be qualified. Preference for appointment shall be in the followingorder:

(i) The person designated in the will;

(ii) Any beneficiary named in the will, or a person nominated bythe beneficiaries;

(iii) Any creditor of the decedent, or a person nominated by suchcreditor;

(iv) Such other person as the court may find to be qualified.

2-6-209. Order admitting or disallowing probate; mailing of copies.

Thecourt or the clerk shall enter an order either admitting the will to probate ordisallowing probate because of insufficient proof. An order admitting a will toprobate shall include the appointment of an executor. The clerk, personalrepresentative or attorney shall transmit by certified mail a copy of the orderadmitting the will to probate, together with a copy of the will, to each namedbeneficiary and to each heir of the decedent.

2-6-210. Form of letters testamentary.

Letterstestamentary must be substantially in the following form:

State of Wyoming )

)ss

County of .... )

The last will of A. B., deceased, a copy of which is heretoattached, having been proved and recorded in the district court within and forthe county of ...., C. D. is hereby appointed executor. Witness, G. H., clerkof the district court of the .... district within and for the county of ....with the seal of the court affixed, the .... day of .... A.D. ....

--------------------------------------- Clerk.

2-6-211. Authority of executor not designated in will.

Executorswho are not designated in the will have the same authority over the estateswhich executors named in the will have.

ARTICLE 3 - ACTIONS TO SET ASIDE OR CONTEST

2-6-301. Filing and contents of petition to revoke.

Aftera will has been admitted to probate, any person interested may, within the timedesignated in the notice provided for in W.S. 2-6-122 or 2-7-201, contest thewill or the validity of the will. For that purpose he shall file in the courtin which the will was proved a petition in writing containing his allegationsagainst the validity of the will or against the sufficiency of the proof, andpraying that the probate be revoked.

2-6-302. Summons and notification; proceedings governed by civilrules.

Uponfiling the petition, a summons shall be served upon the executors of the willand the clerk shall send notice by certified mail, with copy of petitionattached, to all the legatees and devisees mentioned in the will and all theheirs, so far as known to the petitioner, or to their guardians if any of themare minors, or to their personal representatives if any of them are dead. Thesummons, service and proceedings shall be governed by the Wyoming Rules ofCivil Procedure.

2-6-303. Annulment and revocation.

Ifupon trial, the jury, or if no jury, the court decides the will is invalid orthat it is not sufficiently proved to be the last will of the testator, theprobate shall be annulled and revoked.

2-6-304. Cessation of executor's powers; immunity.

Uponthe revocation being made, the powers of the executor cease, but the executoris not liable for any act done in good faith previous to the revocation.

2-6-305. Liability for payment of contest costs.

Thefees and expenses shall be paid by the party contesting the validity or probateof the will if the will in probate is affirmed. If the probate is revoked, thecosts shall be paid by the party who resisted the revocation, or out of theproperty of the decedent, as the court directs.

2-6-306. When probate deemed conclusive.

Ifno person within the time designated in the notice provided for in W.S. 2-6-122or 2-7-201 files a petition to contest the will or its validity, the probate ofthe will is conclusive.