Oral Will: Definition: How it Works, Pros and Cons

Oral wills, often referred to as nuncupative wills, have historically provided a way for individuals to express their final wishes verbally instead of in written form. This type of will is less common today but still holds relevance in certain situations, especially when someone faces imminent death and lacks the ability to draft a formal written will. Understanding how oral wills work, their advantages, and their drawbacks can help people evaluate whether this option fits their specific needs and legal circumstances.

What is an Oral Will?

An oral will is a verbal declaration of a person’s final wishes regarding the distribution of their assets after death. Unlike written wills, oral wills are spoken in the presence of witnesses, and they are typically made in emergencies or situations where the individual is near death. The validity of oral wills varies by jurisdiction, and they are often subject to strict legal requirements regarding the number of witnesses and the circumstances under which they are made.

How Does Oral Will Work?

Oral wills allow individuals to state their final wishes in front of witnesses verbally. The person making the oral will, typically in situations of imminent death, declares how they want their property and assets distributed. For it to be valid, most jurisdictions require a specific number of credible witnesses to hear the oral declaration. These witnesses must later testify in court or provide written statements affirming the will’s contents. Oral wills are generally limited to personal property and may not apply to real estate or other large assets. Laws governing oral wills are highly specific and vary by state or country.

Is an Oral Will Valid?

Yes, an oral will can be valid, but its validity depends on the laws of the jurisdiction where it is made. In many places, oral wills are only recognized in specific circumstances, such as during military service or when an individual is facing imminent death. Even then, the oral will must meet legal requirements, such as being spoken in the presence of a required number of witnesses who can later testify about its contents. Additionally, oral wills may only be valid for distributing personal property and may not apply to real estate or more complex assets.

What Are the Elements of an Oral Will?

The elements of an oral will vary by jurisdiction, but the following are commonly required:

1. Imminent Danger or Emergency: An oral will is typically made when the individual is facing immediate death, such as during a medical emergency or in military service. The law usually limits the use of oral wills to these urgent situations.
2. Testator’s Intent: The person making the oral will (the testator) must clearly express their intention to distribute their assets upon death. This intent must be communicated verbally and understood by witnesses.
3. Presence of Witnesses: Most laws require that the oral will be made in the presence of a certain number of witnesses, often two or three. These witnesses must hear the testator’s declaration and later provide testimony or written statements to verify the will’s contents.
4. Testamentary Capacity: The testator must have the mental capacity to understand the nature and consequences of making the oral will. They must be aware of the assets they are distributing and to whom they leave them.
5. Witness Testimony: The witnesses to the oral will must be able to recount what was said. In many cases, they may be required to testify in court or submit affidavits confirming the testator’s wishes and the conditions under which the will was made.
6. Limitations on Property: Oral wills often apply only to personal property and may not be used to transfer real estate or other significant assets. The law may impose restrictions on the types of property that can be included in an oral will.

Do Oral Agreements Stand Up in Court?

Yes, oral agreements can stand up in court, but their enforceability depends on the type of agreement and the circumstances surrounding it. For an oral agreement to be valid, it must meet the essential elements of a contract, such as offer, acceptance, mutual intent, and consideration. However, certain types of agreements, like real estate transactions or contracts that cannot be completed within a year, typically require written documentation under the Statute of Frauds. Courts may also require strong evidence, such as witness testimony or supporting actions, to prove that an oral agreement was made and should be enforced.

Pros of Oral Will

An oral will allows a person to express their final wishes verbally in urgent situations. Here are the main advantages of using an oral will:

1. Quick Creation: An oral will can be made quickly, which is beneficial in emergencies or when a person does not have time to draft a written will.
2. No Formal Documentation Needed: Since the will is spoken, it eliminates the need for paperwork, making it accessible for those who may not have access to legal services or written materials.
3. Useful in Urgent Situations: Oral wills are often used when an individual is near death and cannot create a formal written will, allowing them to express their final wishes without delay.
4. Simplified Process: Oral wills offer a straightforward way to communicate one’s last wishes without the need for complex legal procedures.
5. Verbal Flexibility: In situations where a person’s physical condition prevents them from writing or signing a document, an oral will allows them to articulate their wishes without any physical barriers.
6. Relatively Low Cost: Oral wills typically do not require the involvement of legal professionals, reducing the cost of creating a will.

Cons of Oral Will

While oral wills offer convenience in emergencies, they come with significant drawbacks. Here are the key disadvantages of using an oral will:

1. Limited Legal Recognition: Many jurisdictions either do not recognize oral wills or impose strict conditions for their validity.
2. Easily Contested: Without written documentation, oral wills are more likely to be challenged by family members or other interested parties.
3. Witness Dependence: The will’s validity relies heavily on witness testimony, which can be unreliable or inconsistent.
4. Restricted to Personal Property: Oral wills often cannot be used to transfer real estate or other significant assets, limiting their scope.
5. Short Timeframe for Validity: Some laws require that the oral will be followed up with written confirmation or that it is only valid for a limited time after being made.
6. Lack of Clarity: Verbal instructions may be misunderstood or forgotten, leading to confusion or disputes about the deceased’s true wishes.

What to Do If Someone Claims There’s an Oral Will

When someone claims there is an oral will, you should take the following steps:

1. Verify Witnesses: Confirm that the required number of credible witnesses heard the oral declaration. These witnesses must provide testimony or affidavits about the content of the will.
2. Check Legal Requirements: Ensure the oral will meets the legal requirements in the jurisdiction, such as being made in an emergency or during imminent death, and whether oral wills are recognized at all.
3. Document the Details: Gather as much information as possible from the witnesses, including the exact words spoken, the date, time, and circumstances under which the oral will was made.
4. Seek Legal Advice: Consult an attorney experienced in probate law to help navigate the process of validating the oral will in court.
5. Prepare for Disputes: Be prepared for potential challenges, as oral wills are often contested due to the lack of written evidence and the heavy reliance on witness accounts.

Does Texas Recognize Oral wills?

No, Texas does not recognize oral wills. While Texas law historically allowed nuncupative (oral) wills under certain conditions, the state abolished this practice in 2007. Now, all wills in Texas must be written and signed to be considered legally valid, except for holographic wills, which are permitted if they meet specific legal requirements.

Are Oral Wills Valid in California?

No, oral wills are not valid in California. The state requires wills to be in writing, either typed or handwritten, and signed by the testator. California law does not recognize nuncupative (oral) wills, and for a will to be enforceable, it must meet the state’s formal legal requirements, which include proper execution and witness signatures.

Why You Need a Written Will

Making a will is essential for ensuring that your assets are distributed according to your wishes after your death. A written will provides clear, legally binding instructions for how your property, money, and belongings should be handled. Without a written will, the state decides who inherits your assets, which may not align with your intentions. Additionally, a written will helps prevent disputes among family members, offers the opportunity to appoint a guardian for minor children, and allows you to name an executor to oversee the process. Making a will protects your loved ones and ensures your wishes are honored.

What is the Verbal Promise of Inheritance

A verbal promise of inheritance is an informal agreement in which one person promises to leave assets or property to another upon their death. Unlike a written will, a verbal promise is not legally binding in most jurisdictions. Courts generally require inheritance promises to be in writing and properly executed to be enforceable. Without legal documentation, a verbal promise of inheritance can easily be contested. It may not hold up in court, leaving the intended recipient without legal recourse to claim the promised assets.