Is a spoken will valid?

Spoken wills, sometimes referred to as oral wills or noncupative wills, are typically not valid. Few states recognize this type of will except in emergency situations because of the possibility of fraud or misunderstanding.

Generally, the only recognized oral wills are those made by a soldier on active war duty, a sailor at sea, or a person in circumstantially immediate danger of death. People in these types of isolated situations may not have time to prepare a written will and have it properly executed, so the law will sometimes follow their wishes if they tell someone what they want done with their property.

In some states, an oral is valid, but must have at least two witnesses. Ohio goes further and requires that:

“An oral will, made in the last sickness, shall be valid in respect to [a] personal estate if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words. Such witnesses must prove that the testator was of sound mind and memory, not under restraint, and that he called upon some person present at the time the testamentary words were spoken to bear testimony to such disposition as his will.”

As an example, if someone tells another person they want them to have the family silver, car or a diamond necklace, the person promised these gifts will not be able to claim this conversation constitutes a spoken will. These kinds of gifts must be put in writing. Even if a person really wants another individual to have their diamond necklace at the time of a verbal exchange, he or she may have changed their mind an hour later. For this reason many states have laws requiring promises to make or change a will, not to make a will, or to include a certain provision in a will, be made in writing.

Our advice is to never rely on a spoken will or oral agreement or statement about a will or trust. Get it in writing, preferably with legal counsel to assist you.