If you only had a few hours to live, and didn’t have an estate plan in place, what would you do? It’s not uncommon for individuals to pass on their last wishes to loved ones in their final moments. In this day and age, however, virtually everything requires written evidence. Would a nuncupative will hold up in the test of court? Keep reading to find out.
What is a Nuncupative Will?
A nuncupative will is a type will that is given orally, typically by an individual who is on their deathbed. You will also hear the terms “oral will”, “verbal will”, and “deathbed will.” If you’re unfamiliar with the concept of a Will, we recommend starting with our What Is A Will guide first.
Nuncupative wills are often given by a person who only has a few moments to live. If they don’t have a written will in place, sometimes their only option is to verbally relay instructions on how they want their property distributed upon their passing.
Before the written word was widespread, the oral communication of stories, ideas, and information was tradition. According to the University of Texas, the U.S. only achieved 70 percent literacy as recently as the 1920s. It was common practice for wills to be given orally when writing one was not an option. Seriously ill people on their deathbeds or soldiers on the battlefield would often give their last wishes to any persons by their side.
However, would an oral will hold up in the modern court system? We will discuss this next.
Is a Verbal Will Legal?
A verbal will is rarely legal. There are very few jurisdictions that will consider an oral will, and even then, there are strict limitations.
New York is one of the few states that will consider a nuncupative will claim. The person who made the will must have been a member of the U.S. armed forces, or a person who accompanied armed forces, who was engaged in actual service during a war or conflict. They could also have been a mariner who was at sea. In addition, the oral will is only considered valid if there were a minimum of two witnesses. North Carolina is another state that may consider a nuncupative will. It’s safest to assume that a nuncupative will is not legally binding.
Do Verbal Agreements Stand Up in Court?
If you were witness to an oral will and plan to come forward in probate court, you should be prepared for an uphill battle.
First, in the eyes of the court system, anything in written format will supersede a verbal agreement. This holds true no matter how long ago the written will was signed into effect.
A nuncupative will might be considered as additional evidence in case there are any disputes or grey areas pertaining to the written will. However, they are not legally binding.
This doesn’t mean to say that oral wills don’t have any value. In the case that a will is not being contested in court, nuncupative wills can provide additional support. For example, it can help executors make decisions based on the grantor’s final wishes. It can also help reduce disputes within the family. An oral will can provide additional assurance to parties involved that they are carrying out the wishes of the deceased.
How to Create an Oral Will
The key takeaway regarding the nuncupative will is that they likely won’t hold up in probate court. Oral wills can be valid, but only in rare cases. For the most part, verbal wishes can provide extra assurance for loved ones when they are carrying out the deceased person’s wishes. The only surefire way to protect yourself and your loved ones is to set up a written Will. There are many types of wills, so check out our guide to find out how to choose the right one.