What Are Nuncupative or Oral Wills?

What is a nuncupative or an oral will?

I’m Sarah Siedentopf. I’m an estate planning attorney in Atlanta, Georgia, and oral wills are no longer valid in Georgia. It’s an old thing that used to be here. They were hard to prove at the time, but not a thing anymore.

Georgia now has a law that says wills must be written. You have to be over 14 years of age to write one, you have to be a sound mind. The sound mind standard for making a will is pretty low as well, lower than some other types of contracts. And there have to be witnesses and these witnesses have to watch you sign. So you have to sign it as well as write it.

And of course, an oral will is a spoken will, which has no writing, no signing. And so we won’t even worry about whether there are witnesses because it doesn’t matter. But it might lead you to ask the question about, well, what about a deathbed gift? And that’s technically not a will that falls into contract law.

And there’s a very complicated realm of contract law around those sorts of gifts. But essentially the question is whether it is a completed gift. And if I say to you as I am laying in my bed, “I give you my car,” and that’s all I say, it’s not a completed gift. Now if I say, “I’m giving you my car, please bring that title over here for me to sign.” Or if I say, “I’m giving you my car,” and I hand you the keys, then we have some contract arguments about whether it’s a completed gift because I took some action to complete the gift.

Of course, if I actually sign the title over to you, it is a completed gift. We’re not questioning it at that point. So that’s a slightly different question because of course you can still give things away. But whether you successfully did is a question of contract law.

Gifts are contract law. Gift are better given ahead of time, so you can be sure that they are completed. So if you are looking at a written will or other type of estate plan, please give me a call and I’d be glad to help.