What is a nuncupative will, and is it valid?

It can be easy to put off making a last will and testament. Thinking about the end of our lives is often uncomfortable, and it’s tempting to put off creating this important document until another day. But if someone had a serious illness and didn’t have a will, what could happen? Some people resort to relaying their final wishes to those around them in their last moments. This verbal sharing of wishes is known as a nuncupative will.

What is a nuncupative will?

A nuncupative will, also called an oral or verbal will, is a type of will that’s delivered verbally to witnesses (instead of being written down). Nuncupative wills are usually given by people who are on their deathbed.

Nuncupative wills were popular and even necessary several hundred years ago, when most people couldn’t read or write and relied on the spoken word to communicate important information. But in today’s world, nuncupative wills are rarely valid, difficult to prove, and aren’t accepted in most US states.

Is a nuncupative will valid?

In most cases, no. Nuncupative wills are rarely legally binding and often don’t hold up in court. In the US, fewer than half of the states currently accept nuncupative wills, and even then, they have strict requirements about what makes them valid. Also, if you’ve ever executed a written will — no matter how old or outdated — it will always override an oral will.

Requirements for a nuncupative will

In states that accept verbal wills, there are strict requirements about what makes them legal:

1. The will-maker is dying, or their life is in immediate danger. For example, many states that accept oral wills only do so for active members of the military.
2. The will-maker must ask at least two people to witness (hear) the will. Some states require three witnesses.
3. The witnesses must write down the oral instructions as soon as possible. If they don’t record the verbal will within a certain timeframe (usually 30 days), it likely won’t be valid.

Laws about nuncupative wills vary from state to state, so check your state’s laws for the exact requirements.

Also, if the will-maker survives the life-threatening event that prompted their oral will, it will expire shortly after. Nuncupative wills are only a final effort for someone to record their wishes if they’re on their deathbed and have no other options.

3 problems with nuncupative wills

When it comes to estate planning, there are several reasons why it may be a bad idea to rely on an oral will:

1. Nuncupative wills are rarely legally valid.

The majority of states don’t accept oral wills as legally valid in probate court, and those that do have restrictions on what’s allowed. They’re unreliable as an estate planning tool.

2. Oral wills are difficult to prove.

Even if you have a “valid” oral will, it can be difficult for your witnesses to prove in court. With a verbal will, you’re trusting your witnesses to correctly interpret your wishes and truthfully communicate them. If the court rejects your oral will, your estate will be treated as if you didn’t have a will at all, which can cause delays, confusion, and heartache for everyone involved.

3. You could make a mistake.

There’s a reason most people take the time to inventory their possessions and write their instructions in a will. If you wait until your final moments to express your wishes, the stress of the situation could prevent you from thinking clearly. You could forget to include certain property or even leave important loved ones out of your oral will.

Should you make a nuncupative will?

Estate attorneys don’t recommend relying on an oral will, since most states don’t accept them and they can be difficult to prove.

Instead, you can protect your legacy and loved ones by making a paper will. In it, you’ll list all your assets and the people or organizations you want to receive each one. You can also name guardians for your minor children or pets. Then, you’ll sign and witness your will according to the laws in your state.

You don’t need to leave your legacy up to chance with a nuncupative will. With today’s technology, it’s easier than ever to create a valid last will and testament online. You can use FreeWill’s online will-maker to create your will in just 20 minutes, completely free.