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What Is a Nuncupative Will?
A nuncupative will is a will that is not written but rather is spoken aloud by an individual who is nearing death. The dying individual, known as a testator, verbally states instructions for how they would like their personal property and assets to be distributed upon their demise. This is done in lieu of a written will, as the testator is ordinarily too sick to execute one.
Synonymously referred to as an “oral will,” nuncupative wills are also often called “deathbed wills.” They are viewed as a last resort option because the testator must be actively dying, or there’s an immediate threat to their life.
Nuncupative wills aren’t recognized as legal in the majority of United States jurisdictions.1 The few states that do consider them to be valid, however, do so under strict guidelines.
Constraints of Nuncupative Wills
For it to be considered valid, many states require two witnesses be present to hear a testator verbalize a nuncupative will, although some state laws mandate three witnesses. The testator is often also required to be of sound mind while verbalizing their requests, further restricting the number of people who qualify for this type of will.2
Depending on the jurisdiction, upon the testator’s death, the witnesses might subsequently be put under a time constraint to record the verbal will. For example, witnesses could be given 30 days to write or type the testator’s instructions or risk the will being contested and invalidated. Some states also limit the assets that can be left in a nuncupative will to the personal property equivalence of a specific dollar amount.3
If at any point during their life a testator has created a written will, it will supersede a nuncupative will. This is indicative of the fact that written wills hold greater authority than oral wills in probate courts.
Is an Oral Will Legally Binding?
The short answer is rarely. Nuncupative wills have become an outdated practice, and like holographic wills, aren’t usually accepted as legally legitimate in probate court. The jurisdictions that do consider oral wills to be legal expect them to be in accordance with state regulations. This, in part, entails that they will be filed with a probate court within a specified amount of time following the death of the testator.
Once filed, it will then be subjected to review by the court. If deemed invalid, the court will assume responsibility for appointing beneficiaries and distributing the deceased’s assets.
Where is a nuncupative will valid?
In the United States, the District of Columbia and seven U.S. states either accept nuncupative wills as valid or may consider doing so.
- District of Columbia
- Indiana
- Missouri
- New Hampshire
- New York
- North Carolina
- Ohio
- Tennessee
New York4 and New Hampshire5 along with the District of Columbia6 have conditions in place that require a testator to be a member of the armed forces to successfully execute a nuncupative will. In some cases, the testator must be in military service during a time of war, whether it be declared or undeclared, or be a mariner at sea.
Alternatively, Missouri7, North Carolina8, Indiana3, and Tennessee9 specify that nuncupative wills are only permitted in the event the testator was in imminent peril of death when reciting the will and ultimately died as a result of it. If the testator doesn’t die from the impending peril, the nuncupative will typically expires after a period of time.
Ohio should recognize the legitimacy of a nuncupative will10 with regard to personal property so long as the testator vocalizes their final wishes during their last sickness with witnesses present. The will must also be reduced to writing and subscribed by two witnesses within 10 days after the speaking of the testamentary words.4
Why a written will?
Taking into consideration the limited number of states that legally accept nuncupative wills, along with the difficulty involved in proving their validity, it’s advisable to instead pursue a written will when doing your estate planning, if possible. Putting your final will in writing ahead of time can help you avoid having to rely on verbalizing it as a last resort near the time of death. Though drafting a written will is customarily a simple process, enlisting the assistance of an attorney, such as an estate planning lawyer, can help ensure that your final will accurately reflects your wishes and is ultimately executed properly. If you’re looking to hire a lawyer, check with your employer to see if they offer legal services that can help make getting legal help more simple.
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1 “Nuncupative Will", Legal Information Institute, Cornell Law School, Cornell.Edu
2 “What Is A Nuncupative Will & Who Can Make One?,” Policygenius 2021
3 Indiana General Assembly: Chapter 5: IC 29-1-5 | Execution and Revocation of Wills
4 New York State Senate: Section 3-2.2 | Nuncupative and holographic wills
5 TITLE LVI | PROBATE COURTS AND DECEDENTS' ESTATES: CHAPTER 551 | WILLS
6 Code of the District of Columbia: 18–107 | Nuncupative Wills
7 Title XXXI TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY: Chapter 474
8 Chapter 31: Wills | Article 1: Section 31-3.5. | Nuncupative Will
9 House Bill 1422: Section 32-1-106
10 Ohio Laws & Administrative Rules: Section 2107.60 | Oral Will