Understanding Oral Wills: Definition, Functionality, and Validity

An oral will is a will that is made verbally to others and with the intent of ensuring that the wishes of the dying are carried out. It does not take on written form. A will is a legal document that communicates, among other things, an individual's wishes for the distribution of their assets and possessions after their death.

Key Aspects of Oral Wills

Oral wills are referred to as a noncupative will or deathbed will. A witness to an oral will may come forward with the instructions and try to probate it. 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. The creation of wills is governed under state law. Each state can determine whether or not to accept oral wills and what restrictions to make around their use and requirements for creating valid wills. For the limited number of jurisdictions that permit oral wills, the elements that are required may vary from one state to the next.

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 their 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 or is a mariner at sea. The oral will may only be allowed to dispose of personal property as opposed to real property. Also, a state may set a maximum value for each property or the aggregate of all properties.

Challenges in Proving an Oral Will

Even in jurisdictions that recognize oral wills, it can be difficult to prove the oral will. Because it was not written, it may be difficult for the witness to remember all the terms that the testator provided. Witnesses may have different memories about what was said. The oral will may have been delivered during a stressful time, such as the testator being struck with a sudden illness. 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 requirements were met, such as the person being in peril of death.