Nuncupative wills—also known as oral wills or verbal wills—are only recognized in about twenty states—and only in limited circumstances in those states. In states that do recognize nuncupative wills, the testator (person making the will) usually must be “in their last sickness” (on their deathbed) or “in imminent peril of death.” A few sates permit nuncupative wills made by military personnel on active duty or in war or armed conflict and by a mariner while at sea.
There usually must be two or three witnesses present who hear the testator speak the words demonstrating a testamentary intent to dispose of the testator’s property at the testator’s death. In some states these witnesses are required to transcribe (write down) the testator’s testamentary wishes (will) within a certain period.
States that recognize nuncupative wills usually limit the amount of property that can be conveyed and limit the property to personal property (not real property or real estate). Laws regarding nuncupative wills are usually located in a state’s statutes—often in the estates and trusts code or probate code.
In Texas, nuncupative wills, also known as oral or verbal wills, are recognized under very specific and limited circumstances. According to the Texas Estates Code, a nuncupative will is only valid if it is made during the testator's last sickness or in imminent peril of death and they do not survive the sickness or peril. Additionally, the oral will must be made in the presence of at least three credible witnesses. Texas law requires that the nuncupative will be reduced to writing by or under the direction of one of the witnesses within six months of the will being spoken. Furthermore, the estate disposed of by the nuncupative will is limited to personal property and cannot exceed the value of thirty thousand dollars. Real estate cannot be disposed of through a nuncupative will in Texas. It is also important to note that nuncupative wills are not valid for members of the armed forces or mariners at sea, as Texas does not have specific provisions for these individuals regarding oral wills.
