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Can a Will Be Oral?

An oral will is also called a nuncupative will. Oral wills are delivered or communicated by the testator in speech to witnesses, rather than being reduced to a typed or written format. This type of will is rarer than printed or even handwritten wills.

Are Oral Wills Legally Valid?

A minority of U.S. states allow testators to make oral wills but, even then, only in limited circumstances. Approximately 20 states currently permit the use of oral wills. As a result, for those parties desiring to make an oral will, it is important to be aware of the guidelines, restrictions, and requirements in order for the will to be deemed legally valid. This type of will is often disfavored and heavily scrutinized by courts because of the high likelihood for fraud, dishonesty, and abuse of third parties towards a testator in a vulnerable, infirm condition under stressful circumstances at the end of life.

In most states where they are allowed, oral wills can only be made under special circumstances and instances, such as during a testator's last sickness or an illness or injury that is reasonably believed by the testator to be terminal and likely to bring about an end to the person's life in an imminent manner. To be valid, the oral will must be:

  • witnessed by a minimum of three disinterested parties
  • reduced to written form by one or more of the witnesses within a certain short period of time after the testator passes

Some U.S. states set additional limitations and restrictions on oral wills. For example, there may be limits on the property types and monetary values that can be devised through this type of will. Generally, oral wills can only be used to bequeath personal property of the testator. A minority of U.S. jurisdictions, however, do permit the testator to devise real property in an oral will.

Oral Wills Are Often Allowed for Active Military

In some U.S. jurisdictions, particularly those states with a large military presence because of a large base, camp, or fort, oral wills may be permitted for active duty military. Due to the nature of deployment occurring on short notice in some instances and for indefinite periods of time, the spouses, family members, and other beneficiaries of the active duty service personnel often need some sort of estate planning document from their loved one for their protection and provision in the event of a death during service. Lawmakers and policymakers don't want those service personnel with insufficient time or resources to be dissuaded in creating even the most simple of estate planning documents to protect their loved ones. So, the laws governing the military tend to be more lenient in allowing for oral wills.