What Is a Nuncupative Will?

Also known as a ‘death-bed will,’ a nuncupative will is a specialized type of oral will that can be used in limited circumstances. North Carolina is among the minority of U.S. states that recognize the validity of nuncupative will. That being said, nuncupative wills are not ideal. They are only permissible when certain conditions are met. Here, our Charlotte wills and estates lawyers explain the most important things to know about nuncupative wills in North Carolina.

To make a valid last will and testament in North Carolina, there are some basic rules and procedures that you must follow. Generally speaking, a will must be in writing. However, there is one exception: A Nuncupative (death-bed) will. Under North Carolina law (N.C. Gen. Stat. § 31-3.5), a nuncupative will is a will that is“ made orally by a person who is in that person's last sickness or in imminent peril of death and who does not survive such sickness or imminent peril .”

In other words, a nuncupative will is an exception to North Carolina law that allows a person who does not have a will but is already on their death-bed to make last minute declarations. A nuncupative can be legally binding—assuming that all necessary legal criteria and requirements have been met.

As noted above, nuncupative wills are an emergency exception to North Carolina general legal requirements. An oral death-bed will can only be accepted as legally valid in a limited number of circumstances. More specifically, the following seven criteria must be met:

• Death-Bed: The testator (person making the will) must have a reasonable belief that they are on their deathbed. A person who has a fatal illness but is not at imminent risk should write will.
• Two Witnesses: Under North Carolina state law, a nuncupative will can only be accepted by a probate court if the oral declaration was made in front of two competent witnesses. If there is only one witness, the court cannot accept an oral will.
• Clear Intention: To make a nuncupative death-bed will, a person must clearly state their intention to do so. If someone does not have a will but simply makes general statements on their death-bed, those statements are not legally enforceable in North Carolina. An oral death-bed will can only be made with a clear and unequivocal statement of intent.
• Request for Witnesses to Testify: A person making a nuncupative will must also request that their witnesses (two or more) testify to the existence and terms of the oral will in a probate court.
• Actual Death: Finally, the testator must actually pass away as a result of the injury, illness, or medical complication. As an example, if a person has a reasonable belief that they are going to die before making a miraculous recovery, then the death-bed will that they made is not legally valid.

North Carolina’s emergency death-bed will exception is only for people who do not have a valid written will. A death-bed will cannot supersede an already existing written will. If a person wants to change a written will near the end of their life, they must take active steps to do so.

In an emergency situation when a person is on their death-bed without a will, making an oral (nuncupative) will may be the best available option. Of course, an oral will is never ideal. With a professionally drafted, written will you have the opportunity to sit down and prepare ahead of time to make sure that your estate planning documents actually carry out your last and final wishes.

Additionally, nuncupative oral wills are far more likely to end in conflict. Even when all parties are acting in good faith, they may come to different interpretations of an oral statement. Protect yourself and your family by writing a comprehensive will. You can rest easier knowing you have a properly prepared estate plan in place.

At Arnold & Smith, PLLC, our North Carolina wills and estates attorneys strive to provide the highest level legal representation and client service. If you have any specific questions about nuncupative wills or estate planning in general, we are here to help. Give us a call at 704.370.2828 or contact us online for a strictly confidential case evaluation. With offices in Charlotte, Monroe, and Mooresville, we provide estate planning and probate law services throughout the region.