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Nuncupative Will: Definition, How it Works and Validity

Written by

Annie L.

Reviewed & Facts Checked by: Patience P.
Nuncupative will definition, working process, and validity.

 

A nuncupative will, though less common, plays a significant role in estate planning for those facing urgent or extraordinary circumstances. These oral wills, typically made when a person is near death, are an alternative to traditional written wills in certain situations. While not valid in every state, they offer an option for individuals unable to draft formal documents. At LegalPen, we understand the complexities of various will types, and our platform simplifies the process of preparing legal documents, ensuring peace of mind in critical moments.

What is a Nuncupative Will?

A nuncupative will is an oral declaration of a person’s final wishes regarding the distribution of their property, made in the presence of witnesses instead of being written down. Often created in situations where the testator faces imminent death and lacks the time or ability to draft a formal will, nuncupative wills allow the person to express their intent verbally. Despite their practicality in emergencies, nuncupative wills are recognized only under particular conditions and are subject to strict legal guidelines to ensure validity.

What are the Requirements for a Nuncupative Will?

The requirements for a nuncupative will, often called “deathbed wills,” vary by jurisdiction but include strict guidelines below to ensure its validity:

  1. Imminent danger of death. The testator must be facing an immediate life-threatening situation or be on their deathbed.
  2. Oral declaration. The will must be spoken, not written, and declared verbally by the testator.
  3. Presence of witnesses. Depending on jurisdiction, the will must be made in front of at least two or three witnesses.
  4. Time limit. The nuncupative will may only be valid if the testator dies within a certain period after making the oral declaration.
  5. Limitations on property. Some jurisdictions restrict the types of property that can be passed through a nuncupative will, often excluding real estate.
  6. Written documentation. The witnesses must write down the oral declaration as soon as possible after the testator’s death.

Is Nuncupative Will Valid?

Yes, a nuncupative will can be valid, but only under very specific circumstances and in certain jurisdictions. It is typically recognized when the testator is on their deathbed or facing an imminent threat to their life and unable to create a written will. Jurisdictions that allow nuncupative wills impose strict requirements, such as the need for multiple witnesses and limitations on the types of property that can be transferred.

How Many Witnesses Are Required for a Nuncupative Will to be Valid?

Two or three witnesses are required for a nuncupative will to be valid. However, this may vary depending on the jurisdiction. These witnesses must be present when the testator makes the oral declaration of their final wishes. Their role is crucial in establishing the oral will’s validity, as they are responsible for documenting the testator’s statements shortly after the will is made. The requirement for multiple witnesses helps ensure that the will accurately reflects the testator’s intent and adds a layer of protection against disputes or fraud.

What Are the 5 Problems with Nuncupative Wills?

A nuncupative will is helpful as it can serve as a last resort in dire situations, it has significant drawbacks that complicate the estate distribution process. Below are some of the common problems associated with a nuncupative will:

  1. Lack of Clear Documentation. Since nuncupative wills are oral, there is no written record directly from the testator, making it difficult to prove the testator’s wishes and increasing the likelihood of disputes.
  2. Witness Reliability. The will’s validity heavily depends on the witnesses’ memory and honesty. The will may be challenged or deemed invalid if their accounts differ or seem unreliable.
  3. Limited Legal Recognition. Many jurisdictions do not recognize nuncupative wills or limit their use to specific situations, such as active military service or imminent death, which restricts their broader applicability.
  4. Property Limitations. Some laws restrict the types of property that can be transferred through a legitimate will, often excluding real estate or large sums of money, which limits its usefulness in estate planning.
  5. Increased Risk of Fraud. Without a written document, there is a higher risk of misrepresentation or manipulation by those who might benefit from the testator’s death, leading to potential legal disputes.

Why Should You Make a Nuncupative Will?

A nuncupative will can be a practical solution in urgent situations. Below are the reasons to consider making one:

  1. Emergency Situations. Facing a sudden illness or injury that may lead to imminent death allows a person to quickly express their final wishes through a nuncupative will, eliminating the need for formal documentation.
  2. Lack of Time. When drafting a written will is impractical due to time constraints, a nuncupative will ensures that the testator’s intentions are conveyed before it’s too late.
  3. Immediate Family Concerns.  A nuncupative will can address urgent family matters or disagreements, clarifying the testator’s intentions and potentially preventing disputes among heirs.
  4. Availability of Witnesses. When trustworthy witnesses are readily available, a nuncupative will provides a viable alternative for individuals who may not have been able to draft a formal written will.
  5. Simple Dispositions. For individuals with straightforward estate plans, such as passing on personal belongings to specific family members, a nuncupative will effectively communicates those wishes without the need for complex legal language.

What is an Enforceable Nuncupative Will?

An enforceable nuncupative will is an oral will that meets specific legal requirements, making it valid and legally binding in a court of law. For it to be considered enforceable, it must be made by a person who is facing imminent death, declared in the presence of at least two or three witnesses, and documented by those witnesses shortly after the declaration. An enforceable nuncupative will is important because it ensures that a person’s final wishes regarding the distribution of their property are respected and upheld, even when a formal written will is not possible.

Yes, a verbal will can be legal in certain circumstances, but its enforceability varies by jurisdiction. In many jurisdictions, for a verbal will to be legally binding, it must meet requirements such as being made in the presence of witnesses and expressed by a person who is facing imminent death.

Do verbal Agreements Stand Up in Court?

Yes, verbal agreements can stand up in court, but their enforceability depends on various factors, including the nature of the agreement and local laws. Oral contracts are legally binding if they include essential elements like mutual consent, a clear offer and acceptance, and consideration. However, proving the terms of a verbal agreement can be challenging due to the lack of written documentation, which may lead to disputes over specifics. In some cases, certain types of agreements, such as those involving real estate transactions or lasting more than a year, must be in writing to be enforceable under the Statute of Frauds.

Is a Nuncupative Will an Oral Will?

Yes, a nuncupative will is an oral will. It is usually defined as a verbal declaration of a person’s final wishes regarding the distribution of their property. Unlike traditional written wills, nuncupative wills are made in the presence of witnesses and are typically used in emergency situations, such as when the testator is facing imminent death and cannot draft a formal document.

How to Create an Oral Will

In urgent situations, creating an oral will can be effective, but it must meet certain requirements and steps to ensure oral will validity. Below is a guideline on how to create an oral will:

  1. Assess Your Situation. Determine if you are facing an imminent threat to your life that necessitates an oral will.
  2. Choose Witnesses. Select at least two or three trustworthy witnesses who can clearly hear and understand your declarations.
  3. Clearly State Your Intentions. Verbally express your final wishes regarding the distribution of your property and any specific bequests. Be clear and concise to avoid ambiguity.
  4. Ensure Witness Presence. Ensure your witnesses are present when you make your oral declaration so they can attest to your intentions.
  5. Document the Declaration. After making your declaration, have the witnesses write down what you said as soon as possible. This documentation helps establish the oral will’s validity.
  6. Limit Your Bequests. Be mindful that many jurisdictions impose restrictions on what can be included in an oral will, often limiting it to personal property and excluding real estate.
  7. Follow Local Laws. Familiarize yourself with your jurisdiction’s specific laws and requirements regarding nuncupative wills to ensure compliance and validity.
  8. Communicate with Family. Inform your family members about your oral will to reduce confusion and potential disputes after your passing.

Can a Testator Transfer Real Property Through a Nuncupative Will?

No, a testator cannot transfer real property through a nuncupative will. The reason for this restriction is that real property transfers usually require more formal documentation to ensure clarity and prevent disputes. Written wills provide a clear legal framework for transferring real estate, whereas nuncupative wills, being oral, can lead to ambiguity and challenges regarding the testator’s intentions. Therefore, it is advisable for individuals wishing to transfer real property to create a formal written will.

Can Real Property Always Be Conveyed by Nuncupative and Holographic Wills?

No, nuncupative or holographic wills cannot always convey real property. Both types of wills have specific limitations regarding the transfer of real estate. Nuncupative wills, being oral, are generally restricted to personal property and often cannot legally convey real property due to the need for clear documentation and formalities accompanying real estate transactions. Holographic wills, which are handwritten and signed by the testator, may be valid for transferring real property in some jurisdictions. However, they must still comply with local laws, including witness requirements and specific language related to the property transfer. Many jurisdictions require a formal written will to ensure the clear conveyance of real estate, as real property transactions involve legal complexities that handwritten or oral documents may not adequately address.

What is the Difference Between a Holographic Will and a Nuncupative Will?

The main difference between a holographic will and a nuncupative will is in their form of expression and legal requirements. A holographic will is a handwritten will that is entirely written, dated, and signed by the testator, and it can convey both personal and real property, depending on local laws. In contrast, a nuncupative will is a verbal will made the presence of witnesses and is typically limited to personal property, as it cannot usually convey real estate. Additionally, while a holographic will may not require witnesses in some jurisdictions, a nuncupative will necessitates the presence of at least two or three witnesses who must document the declaration shortly after it is made.

What are the Requirements of Nuncupative Will in Georgia?

Some individuals do not know what a nuncupative will is and its requirements. For individuals considering the option of a nuncupative will, LegalPen, a will writing service in Georgia, can help ensure all legal requirements are met and wishes are effectively documented. In Georgia, the requirements for a nuncupative will include:

  1. Imminent Death. The testator must face imminent death, ensuring the will is created under serious circumstances reflecting urgent intent.
  2. Witnesses. At least two competent witnesses who confirm the testator’s intentions must declare the will.
  3. Documenting the Declaration. Witnesses must write down the testator’s words as soon as possible after the declaration, providing a clear record of intentions.
  4. Property Limitations. Nuncupative wills are limited to personal property and cannot convey real estate, necessitating a formal written will for real property matters.
  5. Time Limit for Enforcement. The will is valid only for 30 days after being made, and the testator must die within that period for it to be enforceable.

What are the Requirements of Nuncupative Will in Texas?

In Texas, individuals can use a will writing service in Texas like LegalPen to ensure their nuncupative will meets all the requirements. They include:

  1. Imminent Danger. The testator must be facing imminent death, typically in life-threatening situations, reflecting urgency.
  2. Witnesses. At least three witnesses must be present during the oral declaration to enhance credibility.
  3. Written Record. Witnesses must document the declaration in writing and sign it within 30 days to verify the testator’s wishes.
  4. Personal Property Only. Nuncupative wills are limited to personal property and cannot transfer real estate, necessitating a formal written will for real property transactions.
  5. Validity Period. The will is valid for 30 days after being made, and the testator must pass away within that time for it to be enforceable.

What are the Requirements of Nuncupative Will in Tennessee?

Understanding the requirements of a nuncupative will in Tennessee is very important. A will writing service in Tennessee can help meet all legal standards. In Tennessee, the requirements for a nuncupative will are:

  1. Imminent Death. The testator must face imminent death, usually due to serious illness or injury.
  2. Property Limitations. Nuncupative wills can only convey personal property and cannot transfer real estate.
  3. Validity Period. The will is valid for 30 days, and the testator must pass away within that time for it to be enforceable.
  4. Witnesses. At least two competent witnesses must be present to verify the declaration.
  5. Documentation. Witnesses must write down and sign the testator’s words within 30 days to establish validity.

 

 

 

 

 

Meet the Author

LegalPen Author Anne

Annie L – Distinguished linguist at LegalPen

Annie is a distinguished linguist at LegalPen, bringing a unique blend of legal expertise and linguistic precision to her work. She earned her Juris Doctor degree from Yale University in New Haven, Connecticut, attending on a prestigious Law Faculty Merit Scholarship. At Yale, Annie showcased her exceptional skills by serving as an editor on the Yale Law Review.

Upon graduating, Annie gained invaluable experience through a two-year appellate clerkship at a renowned law firm in Connecticut. During her time in law school, she honed her research and writing abilities as a research assistant and writer for various legal firms. Annie’s deep understanding of legal language and her attention to detail make her an invaluable asset to LegalPen.