An oral will, which is also called a nuncupative or deathbed will, is a will that is spoken to witnesses, but not written. Such wills are valid only in a few states and only in very limited and unusual circumstances. The idea is that if someone suddenly becomes ill or in extreme danger, and can’t make a written will, his or her last wishes will be honored.
If someone dies without leaving a valid written will, witnesses who heard the deceased person’s last wishes about his or her property may come forward and claim that the person made a valid oral will. It’s an uphill battle, however, to prove that a deceased person’s last words constitute a legally binding will.
Only in a few states are courts willing to even consider the claim of an oral will. New York is one of them; in that state, a nuncupative will is valid only if it was heard by at least two witnesses and it was made by:
If the will-maker survives the danger that prompted the making of the oral will, the will becomes invalid automatically later. In the case of a service member, the will becomes invalid a year after discharge from the armed forces; in the case of a sailor, it expires three years after it was made. (N.Y. Est. Powers & Trusts Law section 3-2.2.)
North Carolina, another state that recognizes nuncupative wills, has somewhat looser rules. An oral will is valid there if it’s made during the will-maker’s last illness or when the person is in “imminent peril of death,” and the person does not survive. The statements must be made to two competent witnesses, together, and the will-maker must request that they act as witnesses. (N.C. Gen. Stat. section 31-3.5.)
Until a few years ago, Texas allowed the use of oral wills to dispose of personal property (not real estate) if the will-maker was on his or her deathbed. Only $30 of property could be left this way unless three witnesses heard the testamentary words. Oral wills made before the law was repealed on September 1, 2007 are still valid. (Tex. Probate Code section 65.)
If you’re the executor of an estate where someone is claiming that a valid oral will exists, or you think you are entitled to inherit based on an oral will, talk to an experienced probate attorney. Obviously, proving the validity of an oral will is quite difficult, and there is 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 “in extremis” or at the point of death when it happened. For example, in a Texas case, the deceased woman had 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 ruled that she had not been at the point of death when she spoke her Thursday instructions, and could have prepared a written will before she died. (McClain v. Adams, 135 Tex. 627, 146 S. W.2d 373 (1941).)