Nuncupative Will: What You Need to Know

What Is a Nuncupative Will?

A Nuncupative Will, also known as an oral will, is a will declared verbally by the testator (the person making the will) rather than being written and signed.¹

It's typically considered only in extreme situations when the testator is facing imminent death or is physically unable to create a traditional written will. Nuncupative wills have limited legal validity and acceptance.

If you're considering a nuncupative will or are involved in a situation involving one, it's vital to consult with an estate planning attorney to understand the legal requirements and potential consequences.

Example

Imagine a person stranded due to a natural disaster, realizing the imminent danger to their life, decides to declare their last wishes in front of rescuers. They specify the distribution of their assets verbally since they cannot physically write down their will. This scenario, while extreme, illustrates the conditions under which a Nuncupative Will might be made and later considered for legal validation.

Pros: What Are the Benefits of a Nuncupative Will?

While specific to urgent and extraordinary situations, the benefits of a Nuncupative Will are significant in providing a flexible and immediate solution for expressing one's final wishes. Here are some of the key advantages:

1. Timeliness in Emergency Situations

Nuncupative Wills shine in critical moments where traditional will preparation is impossible. For individuals facing imminent risk of death, such as soldiers in combat zones or individuals in severe health crises, these wills offer a last opportunity to dictate the distribution of their assets verbally.

2. Accessibility

They do not require the formalities of writing, signing, and witnessing that standard wills do. This makes Nuncupative Wills particularly accessible when the testator cannot write or sign a document due to injury or illness.

3. Simplicity

Creating a Nuncupative Will can be straightforward, relying on verbal communication rather than the need for drafting and legal review. This simplicity can ease the burden on individuals in distressing circumstances, allowing them to focus on expressing their wishes without worrying about legal technicalities.

4. Witness Affirmation

The presence of witnesses during the declaration of a Nuncupative Will can strongly affirm the testator's intentions. Witnesses can directly attest to the clarity and conviction with which the testator expressed their final wishes, providing a level of personal testament that written documents may lack.

5. Legal Recognition in Specific Jurisdictions

Jurisdictions that recognize Nuncupative Wills offer a legal pathway to ensure that a person's last wishes are heard and potentially honored, even if traditional will-making processes were not completed. This legal acknowledgment underscores the importance of intent in estate planning.

Cons: What Are the Drawbacks of a Nuncupative Will?

While Nuncupative Wills can be beneficial in certain circumstances, they also have several significant disadvantages. Understanding these limitations is crucial for anyone considering this type of will as part of their estate planning. Here are the main disadvantages:

1. Limited Legal Recognition

One of the most significant drawbacks is that not all jurisdictions recognize Nuncupative Wills as valid.² This limited acceptance means that such a will may have no legal standing in many places, potentially leaving the testator's final wishes unfulfilled.

2. Strict Requirements for Validity

In jurisdictions that do recognize Nuncupative Wills, there are often stringent requirements regarding the circumstances under which they can be made (e.g., in imminent peril of death), the content that can be included, and the number and nature of witnesses required. These restrictions can complicate the process and limit the will's applicability.

3. Risk of Disputes

Given their oral nature, Nuncupative Wills are more susceptible to disputes among heirs and beneficiaries. Witnesses' recollections can vary, leading to challenges regarding the will's contents, the testator's intentions, and even the circumstances under which the will was declared.

4. Probate & Validation Challenges

Nuncupative Wills typically undergo a more rigorous probate process. Proving the will's validity may require additional steps, such as sworn testimony from witnesses, which can prolong the probate process and increase legal costs.

5. Limited Scope

These wills often limit the types and values of assets that can be bequeathed. For instance, some jurisdictions may only allow personal property to be distributed through a Nuncupative Will, excluding real estate or other significant assets.

6. Potential for Misunderstanding & Misinterpretation

Without the clarity of a written document, there's a higher risk of misunderstanding the testator's wishes. The nuances of language and the risk of omission in verbal communication can lead to interpretations that may not align with the testator's intentions.

7. No Opportunity for Revision

Once declared, Nuncupative Wills do not offer an easy way to make changes or revisions. If the testator's wishes evolve or if they wish to include additional provisions, the lack of a physical document makes updates challenging and often necessitates creating an entirely new will under the same stringent conditions.

Considerations for a Nuncupative Will

When considering a Nuncupative Will, several critical factors come into play:

Jurisdictional Legality

Understand the Law: First and foremost, verify if Nuncupative Wills are legally recognized in your jurisdiction. The legality varies significantly, with some regions accepting them under strict conditions while others do not recognize them at all.

Specific Conditions: For jurisdictions that allow Nuncupative Wills, familiarize yourself with the conditions under which such a will can be made, including any limitations on the types of assets that can be bequeathed.

Circumstantial Requirements

Imminent Peril: Many jurisdictions require that a Nuncupative Will be made in the face of imminent death, such as during a terminal illness or before a dangerous operation. The urgency and inability to make a written will must be evident.

Witnesses: Typically, two or more witnesses must be present to hear the testator's verbal declaration. Understanding the criteria for who can serve as a witness (e.g., age, relationship to the testator) is essential.

Content & Clarity

Clear Expression: The testator must clearly express their intent for the declaration to serve as their will, including specific instructions about how assets should be distributed.

Limitations on Assets: Be aware of any restrictions on what can be included in a Nuncupative Will. Often, these wills may not cover real estate or high-value assets.

Documentation & Confirmation

Witness Statements: Nuncupative wills usually require multiple witnesses present at the time of declaration. Witnesses are often required to document the will promptly, sometimes within a specific timeframe after the declaration. This process may involve written statements or court testimony.

Probate Process: Consider the potential complexities in the probate process, as Nuncupative Wills often undergo more scrutiny and may face challenges regarding their validity and the testator's intent.

Alternatives & Precautions

Seek Legal Advice: Consulting with an estate planning lawyer can clarify the feasibility and advisability of a Nuncupative Will as an estate planning tool under your circumstances.

Consider Written Wills: Whenever possible, opt for a written will. Even in urgent situations, newer technologies like digital wills or even video recordings (where legally recognized) can offer clearer, more defensible expressions of your wishes.

Conclusion

Nuncupative wills should be considered an absolute last resort after all other options have been exhausted. The potential for legal challenges, misinterpretation, and non-validity heavily outweigh the perceived benefits except in the most extraordinary circumstances.

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Sources

1. Nuncupative Will - Cornell Law School - Legal Information Institute. https://www.law.cornell.edu/wex/nuncupative_will
2. When is an oral will valid? - HG.org. https://www.hg.org/legal-articles/when-is-an-oral-will-valid-44438
3. Free Will from Fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies. https://www.westernsouthern.com/about/family-of-companies.