Although more than one type of will exists, not all of the fifty states accept them as legally binding or valid. Nuncupative wills are quite possibly the least recognized type of will. The guidelines given by the states severely limit the right to make such an agreement as well as the amount and disposition of property that can be orchestrated within such an agreement.
What Are Nuncupative Wills?
Oral or spoken wills are referred to as nuncupative wills. The individual creating the will, referred to as the testator, states how he wants his property to be distributed to his inheritors. He will need to state all of these in front of two or more witnesses. These are not considered valid in every state. Typically, this type of will must be spoken in front of a minimum of two witnesses. In some states, more than two witnesses are required in order for it to be legally binding.
This type of will is sometimes referred to as a deathbed will since this is commonly when it takes place. The intention for this type of will in the states that accept it as valid is to provide a "safety" measure for those individuals who find themselves on their deathbed without a written will in place.
What Is the Validity of Nuncupative Wills?
In general, a minimum of two witnesses must be present in order for a nuncupative will to be valid. In some states, this minimum is three witnesses.
Today, nuncupative wills are often intended for service men or women who are in active service. Therefore, some states only recognize the validity of one when it has been created by a service member. The reason behind this is that in times of war, the need may arise to create a will upon fear of imminent death without access to legal services or documentation.
What Are the Disadvantages of Nuncupative Wills?
Nuncupative wills are often found to be invalid if a written will exists. This is particularly true when the spoken will contradicts the contents of the written one. Therefore, misunderstandings can arise that will not lead to the deceased person's property being distributed in the manner that he desired.
The possibility of fraud exists with nuncupative wills since the only proof of the testator's intentions is the word of the witnesses. It would be quite simple for two "witnesses" to get together to plan a fraudulent oral will.
Even if the will is spoken in front of two witnesses by the dying person, other people can come forward and claim that fraud has occurred when it has not. If the proper precautions have not been made, the will could be determined to be invalid.
Oral wills that are made with the intention of changing part of a written will are usually not accepted as valid. Changes to written wills need to be drafted in writing.
Oral wills might not be valid if the individual moved to a new state of residence prior to his death yet the will was created in his original state of residence.
What Are Some of the Requirements for a Nuncupative Will to be Valid?
Depending on the state, one or more of the following circumstances must be met in order for the agreement to be considered valid:
· Each of the witnesses must write down the intentions of the deceased within ten days of his statement.
· The will must be submitted within six months of the person's death for probate.
· Dollar-amount restrictions must be met.
· The terms must have been stated during the last illness experienced by the deceased individual.
What States Accept Holographic Wills as Valid?
Approximately two dozen states accept this type of will as valid. Among the states that accept nuncupative wills to be valid as long as the state's requirements have been met are: Mississippi, New York, and Ohio.