Is an Oral (Spoken but Not Written) Will Valid?

Learn why oral wills typically don’t work, what to do if someone claims that there’s an unwritten will, and whether any “deathbed wills” are legal.

An oral will, also called a "nuncupative" will, is a will that's spoken to witnesses but not written out. Such wills are valid in a few states but only in very limited and unusual circumstances. In these states, the idea is that if someone is suddenly in imminent danger of death and can't make a written will, the person's last wishes can still be honored. But in most states, oral wills aren't valid—a will must be in writing and signed.

Is an Oral Will Legal?

In most states, a will that isn't in writing is simply not valid. But a small number of states do make exceptions. In these jurisdictions, if someone dies without leaving a valid written will, witnesses who heard the deceased person's last wishes can come forward and testify that the person made a valid oral will. However, it can be an uphill battle to prove that a deceased person's last words represent a legally binding will.

In the states that allow oral wills, the requirements vary; some are stricter than others. But all the states limit the use of oral wills to very specific situations involving great risk of death, such as while serving in the military during wartime.

For example, in New York, a nuncupative will is valid only if it was heard by at least two witnesses and it was made by:

  • a member of the U.S. armed forces while in military or naval service during a war or other armed conflict
  • a person who serves with or accompanies an armed force engaged in military or naval service during a war or other
  • armed conflict, or
  • a mariner while at sea.

Under New York law, an oral will expires automatically after a certain amount of time—between one and three years after it was made. (N.Y. Est. Powers & Trusts Law § 3-2.2 (2022).) So, if the will-maker survives the danger that prompted the making of the oral will and then dies five years later, the oral will won't be valid at the time of death.

In comparison, North Carolina has somewhat looser rules; you don't have to be a service member or mariner. There, an oral will is valid if it was made during the will-maker's last illness or when the will-maker was in "imminent peril of death," and didn't survive. (N.C. Gen. Stat. § 31-3.5 (2022).)

Some jurisdictions, like Indiana, New Hampshire, and Washington, D.C., also impose deadlines, like requiring that the will be "reduced to writing" (written down) by witnesses, or submitted to probate court, or both, within a certain amount of time after the oral will was made. (See, e.g., Ind. Code Ann. § 29-1-5-4(a) (2022), N.H. Rev. Stat. § 551:16 (2022), and D.C. Code § 18-107 (2022).)

And some states limit the use of an oral will by allowing only a very small amount of property to be transferred (such as $500 in Missouri; see Mo. Rev. Stat. § 474.340(2) (2022)), or by allowing oral wills to transfer personal property only, and not real estate (N.C. Gen. Stat. § 31-3.2(b) (2022)).

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

If you're the executor of an estate and someone is claiming that a valid oral will exists, or you think you're entitled to inherit based on an oral will, you should probably talk to an experienced probate attorney. And be ready for a fight, as proving the validity of an oral will is quite difficult, and there's likely to be disagreement among surviving family members.

Even if it seems clear that someone did issue oral instructions for how property should be left, it's often tough to prove that the person was really at the point of death when it happened.

For example, in a Texas case (back when Texas used to recognize oral wills), a woman called someone to her bedside on a Thursday; she told him she knew she was about to die and that she wanted a friend to inherit her property. By Saturday, she was well enough to go to a neighbor's house and a grocery store but died at home that night.

The court didn't recognize the oral will. It ruled that the deceased woman hadn't been at the point of death when she spoke her Thursday instructions and could've prepared a written will before she died. (McClain v. Adams, 135 Tex. 627, 146 S. W.2d 373 (1941).)

Other Types of Deathbed Wills

Oral wills aren't the only type of will that might be made in an emergency situation. Many states also recognize holographic wills (sometimes informally called "deathbed wills"), which are handwritten wills that aren't witnessed.

Why You Need a Written Will

The best way to ensure your property is passed on to the people you want to inherit it is to put your wishes in writing in the form of a properly signed and witnessed will. Don't wait for a crisis.

Most people can create a simple will without the need to hire a lawyer. Online tools, like Nolo's Willmaker, can help you create the estate planning documents you need so your family knows your wishes after you're gone.

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