When is an Oral Will Valid?


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In most cases, it is recommended that a will be put in writing. This creates more credibility and indicates more clearly how the testator’s wishes should be carried out. However, in some situations an oral will may be created and enforced.

Oral Wills

An oral will is a will that is made verbally to others and with the intent of ensuring that the wishes are carried out. Oral wills are referred to in other terms, such as a “noncupative will” or “deathbed will.” If someone witnessed an oral will, he or she may come forward with the instructions and try to probate this will. Oral wills are not as generally accepted as written wills. Most states do not recognize these wills as valid and refuse to acknowledge them for public policy reasons.

Elements of Noncupative Wills

The creation of wills is governed under state law. Each state can determine whether or not to accept these types of wills and what restrictions to make around their use and requirements for creating valid wills. For the limited number of jurisdictions that permit these wills, the elements that are required may vary from one state to the next. Some elements may include:

Witnesses

The oral will needs to be made to someone so that there is someone who can try to carry out the wishes. These witnesses may need to be disinterested meaning that they may need to not stand to inherit anything. There may be a requirement of two, three or more witnesses for the will to be considered.

Imminent Danger

Another element may be that there is imminent danger to the testator. He or she may be in a dangerous situation. He or she may be on his or her deathbed. Often an oral will becomes invalid after a certain point in time, such as a year after returning from service in the armed forces or after the immediate illness cedes.

Only Personal Property

Often the oral will may only dispose of personal property in distinction of real property. Also, the state may have a maximum value that each property or the aggregate of all property can go up to.

Special Circumstances

Some states only recognize the use of oral wills in special circumstances, often in dangerous situations when there may not be an adequate or reasonable alternative. In these jurisdictions, the oral will may be accepted if the person making it was in a state of danger or suddenly became ill and was unable to make a written will to ensure his or her wishes would be honored. For example, some jurisdictions allow for an oral will if the testator is a member of the armed forces and is on active duty or in war or armed conflict. Jurisdictions may also allow for oral wills if the individual works in conjunction or by accompaniment of the armed forces during war or in active duty of if he or she is a mariner at sea.

Proving an Oral Will

Even in jurisdictions that recognize oral wills, it can be difficult to actually prove the oral will. Because it was not written, it may be difficult to remember all of the terms that the testator provided. Witnesses may have different memories about what was said. The oral will may have been delivered during an emotional distraught time, such as the testator being struck with a sudden illness and the witnesses may have a blurry memory.

Additionally, proving an oral will is often subject to challenge. Individuals who stand to inherit may not want the instructions in the oral will to be carried out. Those trying to prove the provisions in the oral will may not be able to show that all of the elements were met, such as the person being in peril of death.

Legal Assistance

Individuals who are considering making a will may wish to contact an estate planning lawyer for legal assistance. He or she may be able to draw up documents to provide a valid written will or to provide immediate advice on the creation of an oral will where this is accepted. He or she may caution the testator about the difficulties of proving oral written instructions. He or she should be familiar with the will creation and execution requirements in the state where the will is being created. He or she may provide legal advice to ensure that any will that is created carefully follows the requirements of wills in that jurisdiction.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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