What Is a Nuncupative Will?

A nuncupative will (also known as a verbal or spoken will) is a legally binding testament, declared orally by someone who is on the verge of death. It is sometimes referred to as a ‘deathbed will’. According to some legal definitions, a nuncupative will may be made only when the testator (the person making the will) is in imminent danger of death and is typically made in the presence of at least two credible witnesses.

In general, in order to make a valid nuncupative will, the testator must explicitly state their intentions that they are in fact making a will, and specify at least some of the provisions or assets that are to be included. The will must also be provable. This is done through witness testimony; the witness’ testimonies can be used to prove that the will was in fact made or that it was ever even discussed. Written documents that corroborate the will are also necessary.

Given the very specific circumstances in which a nuncupative will is made, they are not common. The law varies state-by-state, but most states do not recognize nuncupative wills. In some states, a nuncupative will is limited to real property; however, some other states allow nuncupative wills to include most assets, such as patent rights, copyrights, debts and even stocks.

Example of a Nuncupative Will

An example of a nuncupative will might be a person who is elderly and near death, and wanting to make sure that a prized collection of antiques to be given to his son. He would speak to the witnesses present and clearly express what he is doing and who he wants to leave his belongings to. It is required that two witnesses be present to validate the will.

Is a Nuncupative Will Valid?

Although the circumstances in which a nuncupative will is made can be very compelling, most legal professionals would advise against making a nuncupative will, as their validity is often limited and contested. In comparison to a written will, which can be meticulously drafted to provide certainty of intention and make it possible to manage nearly all sizes and types of estates, the validity – and enforceability – of a nuncupative will can be highly contingent upon the witnesses’ testimonies.

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Related Legal Concepts

Understanding nuncupative wills often goes hand in hand with other types of testamentary instruments like holographic will and last will and testament. When disputes arise over oral wills, the situation may lead to a will contest, requiring the formal process of proving a will through witness testimony and documentation. These concepts all relate to how individuals can legally dispose of their property after death, though each has different requirements and levels of legal acceptance.

The Bottom Line

Nuncupative wills represent an emergency exception to normal will-making requirements, allowing oral testaments in dire circumstances when formal documentation isn’t possible. While legally recognized in some jurisdictions, they face significant challenges in court due to their reliance on witness testimony and limited scope. Understanding these constraints helps explain why written wills remain the preferred method for estate planning. For guidance specific to your situation, always consult a qualified, licensed attorney.