Legal Definitions - unwritten will

An unwritten will is more formally known as a nuncupative will. It is a type of will that is declared orally by a person, rather than being written down and signed. Due to the potential for fraud and misinterpretation, nuncupative wills are generally not recognized in most jurisdictions today, or they are only valid under very specific and limited circumstances, often involving individuals facing imminent death, such as soldiers in active combat or people in their last illness.

For a nuncupative will to be considered valid where permitted, it typically requires:

• The testator (the person making the will) to be in their last illness or facing imminent peril of death.
• The testator to declare their wishes orally before a certain number of witnesses.
• The witnesses to then reduce the testator's oral declaration to writing within a specified short period after the declaration.
• The will usually can only dispose of personal property, not real estate.

Here are some examples illustrating the concept of an unwritten (nuncupative) will:

• Example 1: A Soldier in Combat

  A soldier, Private Miller, is gravely wounded on the battlefield and knows he is unlikely to survive. With his commanding officer and a medic present, he clearly states, "I want my savings to go to my sister, Sarah, and my watch to my best friend, John." Private Miller passes away shortly after. The commanding officer and medic, acting as witnesses, immediately write down Private Miller's exact words and sign the document. This scenario, in jurisdictions that recognize them, could potentially qualify as a nuncupative will, as it was made orally by someone in imminent peril of death, before witnesses, and promptly recorded.

• Example 2: A Hospital Emergency

  Mrs. Chen is rushed to the hospital with a sudden, severe medical emergency. Doctors inform her family that her chances of survival are extremely low. Conscious but rapidly fading, Mrs. Chen, in the presence of her two adult children and a nurse, states, "I want my antique jewelry collection to go to my granddaughter, Emily, and the rest of my personal belongings to be divided equally between my children." She loses consciousness shortly after. Her children and the nurse quickly write down her declarations. If the jurisdiction allows for nuncupative wills in such "last illness" situations, and if all other strict requirements are met, this oral declaration could be considered a valid unwritten will for her personal property.