What it means
A will states who should receive a person's property after death. In most countries the law requires it to be written, signed and witnessed, because those formalities help prove that it is genuine and prevent fraud.
An oral will skips the writing and relies on the spoken word. Where they are recognised, oral wills are usually called nuncupative wills.
They often apply only in narrow situations, for example to someone in immediate danger of death or to members of the armed forces on active service. The rules typically require several witnesses and may limit the value or type of property that can be passed on this way.
Even when allowed, oral wills are risky. Witnesses may remember the words differently, disagree about what was meant, or have a personal interest in the outcome.
Courts may require the statements to be written down soon afterwards and may take them through a probate process, which is the legal procedure for proving a will and settling an estate. The financial consequences of relying on one can be serious.
If the will is not accepted, the estate is distributed under the rules of intestacy, the default rules that apply when there is no valid will, and this may not match the person's wishes. Disputes can be costly, delay the transfer of assets and strain family relationships.
Timing and mental capacity add further difficulty. A statement made during a serious illness can be challenged on the ground that the speaker was confused or under pressure, and without a written record it is difficult to prove otherwise.
A properly written will, made in good health and witnessed according to the law, avoids most of these arguments. For businesses, the practical point is to treat verbal promises about inheritance with caution.
A founder who tells colleagues who should take over their shares has not made a safe arrangement. Putting wishes in a properly executed written will, and updating it after major life or business changes, is the dependable route.
In practice
Real-world examples.
Example
A soldier on active service tells two comrades how he wants his small savings divided. In a jurisdiction that recognises such wills, those statements may be valid for limited property, but only if the formal conditions are met. The rules on witnesses and on how soon the words must be written down are strict.
Example
A founder tells her business partners at a dinner that her shares should go to her daughter. There is no written will, so the shares pass under the default rules, and the verbal statement carries little legal weight. The partners are left to negotiate with the family about who controls the company.
Example
A family disagrees about what a grandfather said in hospital. Because nothing was written down and the witnesses recall different words, the court applies the standard inheritance rules and the family bears the legal costs. The dispute takes more than a year to settle and leaves relatives estranged.
Case study
Seen in the real world.
Ashgrove Orchards is a fictional family fruit business whose founder, Elias, often told relatives he wanted his youngest daughter to run the farm. He never signed a written will.
When he died, the family argued over what he had meant. Two relatives remembered his wishes one way and others recalled something different, and the court could not treat the spoken comments as a valid will. The orchard's bank also froze the credit line while ownership was uncertain, which made it hard to pay suppliers.
In this illustrative story the estate was divided under the default rules, the farm was split between four heirs, and legal fees took about $35,000 from the estate. The daughter had to buy out her siblings with a loan, which strained the business for years. A short written will would have avoided the cost and the conflict.
Watch out
Common mistakes.
- Assuming that telling family or friends what you want is enough to bind the estate, when most places require a signed, witnessed document.
- Believing an oral will is valid everywhere, when many jurisdictions do not recognise it at all.
- Leaving business succession to verbal promises, which can leave shares and control in doubt and put the continuity of the business at risk at the worst possible time.
Questions
People also ask.
Are oral wills legal?
In a few places they are accepted in narrow situations, such as imminent death or military service, but most jurisdictions require a written and witnessed will.
What is a nuncupative will?
It is the traditional legal term for an oral will declared to witnesses.
What should I do instead?
Make a written will, have it properly signed and witnessed according to local law, and review it after major life or business changes, ideally with a qualified legal adviser.
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