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Nuncupative Will - When are oral wills legal?

Understanding a Nuncupative Will

Estate planning usually involves written wills, but there is also a will called a nuncupative will. People also know nuncupative wills as oral or verbal wills. People usually give this type of will when they are too sick to execute a written will. In this article, we will discuss what a nuncupative will is, how it works, its legality, and its usefulness.

What is a Nuncupative Will?

People give a nuncupative will verbally instead of writing it down. It is usually given when a person is sick or injured and is confined to a hospital or care situation with little time expected to live. This will has similarities to traditions of leaving property to those present for the last moments of the deceased’s life. A nuncupative will is also called a deathbed will, and it does not supersede a written will.

How Do They Work?

A person making a nuncupative will gives verbal instructions for the distribution of personal property. Witnesses will write down the instructions as soon as possible. The witnesses attest to the fact that the person making the will was of sound mind and understood the implications of their verbal instructions. In some jurisdictions, the instructions must meet specific requirements to be considered valid.

Are They Legal?

England and Wales are more likely to consider nuncupative wills valid and common, as compared to the United States. The United States only considers nuncupative wills valid in limited circumstances. Some of those are emergencies where military members are in danger or injured. These wills made by civilians are rarely valid and must meet specific criteria to be considered legal.

Requirements

States that recognize verbal wills have specific requirements that people must meet to make them legally binding:

  • The testator must be in a life-threatening situation or on their deathbed. Some states strictly enforce the requirement of allowing only oral wills for military personnel.
  • The testator must have at least two witnesses present when they declare their final wishes. Some states may require three witnesses.
  • The witnesses must promptly transcribe the oral instructions into writing. Failure to do so within a specified time frame, usually 30 days, may render the will invalid.
  • The legal requirements for nuncupative wills vary from state to state, so it’s important to check your state’s laws for the exact specifications.

It’s important to note that if the testator survives the life-threatening event that prompted the oral will, it will expire shortly after. People only use nuncupative wills as a last resort to record their final wishes when no other options are available.

When are They Useful

A nuncupative will has little legal validity in most states in the United States. However, it may be helpful in proving the deceased’s intentions in situations where an heir, executor, or personal representative needs to make a claim for personal property. It can provide evidence of the person’s wishes, especially in situations where there is no written will and the estate is small or informal. Nevertheless, a nuncupative will is not a substitute for a written will.

More Facts about Nuncupative Wills

Nuncupative wills:

  • have dollar limits in some jurisdictions, e.g. Texas ($30,000).
  • are not the primary option in estate planning, written wills are better.
  • can be challenged based on the testator’s mental state.
  • are not the same as living wills, which are for medical treatment

Probate court requires presentation of nuncupative wills within 30 days in some states.

In summary

Nuncupative wills are verbal instructions for the distribution of personal property given by a person who is too sick to execute a written will. Although they are not common, they have some usefulness in certain situations. It is important to remember that a nuncupative will is not a substitute for a written will and is only valid in specific circumstances. The local jurisdiction statutes always recommend executing a written will.

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