An oral will is a type of will made when the will maker tells someone close by how they want their assets to be distributed after death. This is done through speaking to the person, not through a written document.
For this reason, oral wills are generally not valid because of the requirement that a will must be in writing and signed. These requirements are in place to avoid the possibility of fraud or misunderstanding.
Many states do not recognize oral wills as being legally valid. There may be some exceptional circumstances where an oral will might be valid in such a state. Promises to make a will or to make changes to an existing will must also be in writing to be valid.
When are Oral Wills Valid?
In states where oral wills are considered valid, they still must meet certain requirements. Typically, oral wills are recognized when made by those in emergency situations. These may include situations such as:
- The person is in imminent danger of death;
- The oral will was made by a member of the military during active service; and
- There is no opportunity to prepare a written will, nor to have it properly executed.
What If I Get an Oral Promise Concerning a Will?
As mentioned, oral wills and oral promises concerning a will are rarely held as valid. They are not always easily enforceable by the courts.
Thus, to protect your interests, if you are the recipient of property in an oral will, then you should seek to get all promises made in writing as soon as you can. This is especially important if the person is incapacitated or is nearing the point of death. These should be done, preferably, with the assistance of a lawyer.
Why are Oral Wills Not Advisable?
The basic premise and purpose behind wills is for estate planning. That is, wills are usually used to plan ahead for the security of your loved ones. Leaving behind only an oral will not only undermines the planning of an estate, but makes it possible for a will contest to occur.
If the will was only spoken and not written down, then at least one witness must be able to attest to what was said. But the witness cannot be the person who is supposed to receive the benefit of the oral will.
But even if someone can attest to the oral will’s gift, it is possible that another person can argue that the testator was not of sound mind at the time of the will. It could also be argued that the testator was influenced into giving the oral will. This could be argued easily, especially if there is a valid, physical will that is very different from the last minute oral will.
Properly drafting a will takes planning and knowledge of state laws. An experienced lawyer in your area can greatly increase your chances of creating a written will that fits your needs and can be properly executed when the time comes.
What are Other Types of Wills?
Oral wills are one of three main types of wills. The other two main types of wills are:
- Self-Proving Wills: A self-proving will is one that has been witnessed and signed and satisfies all the formalities required by state law. This is the most common type of will; and
- Holographic Wills: These types of wills are handwritten without the presence of witnesses. Very few states recognize these types of wills, and only under specific circumstances. They are common in situations where the person may be very ill or are approaching death.
Again, the requirements and laws governing self-proving wills and holographic wills will also vary from state to state. If you have questions about whether any of these will types are valid in your area, you may need to consult with a lawyer who can explain the laws to you.
Which Type of Will is Preferred?
By far, courts will always prefer a self-proving will over holographic wills and oral wills. Written wills that are properly signed and witnessed are the most reliable type of will document, and will help prevent will disputes in the future. Because they satisfy state law requirements, self-proving wills are generally going to be held as valid in a court of law.
Thus, if you are considering creating a will, you should do your best, as much as possible, to create a self-proving will rather than a holographic or oral will. This is your best chance of ensuring that your property will be distributed in the way that you want.
What are the Requirements for a Self-Proving Will?
There are several requirements for a self-proving will to be found valid in a court of law. First, you must be of sound mind to create a will. This means that you must:
- Be at least 18 years of age or an emancipated minor;
- Know what a will document is;
- Know and be aware that you are making a will; and
- Understand the nature of the relationship between yourself and the people who care for you (i.e. immediate family members, including spouse and family).
Thus, a person must have the proper capacity to form a will. This requirement generally applies to all types of wills, including oral wills. If the courts determine that the person did not have the proper capacity at the time they made their will, they may hold that the will is invalid. An example of this is where the person is not of legal age (i.e., under 18 years old).
Do I Need a Lawyer if I Have Legal Issues Involving an Oral Will?
If you need help drafting a will, you should hire a wills, trusts, and estates lawyer in your area. A lawyer will help to ensure that the will you draft holds up in court. If you have issues that involve an oral will, your attorney can review the facts of the circumstances and can explain your legal rights to you.