Handwritten and Oral Wills
Today, the standard method of making a will is the formal witnessed written will, sometimes called an attested will. However, today's formal witnessed will has roots in other methods of making a will. The first wills in medieval England were the oral wills recognized by church-related courts. Some states permit one or more of the historic methods of making a will. This article discusses handwritten and orals wills. Contact your lawyer to learn if these methods of will making are permitted in your state.
The weakness of an oral will is the risk of fraud and abuse. How can we be sure what is claimed to be an oral will is what the person actually said, if anything? Moreover, how can we be sure without witnesses? A solution that at least addresses both problems is the handwritten will--a will written in the hand of the testator. The fact that the will is written gives us some assurance that we have a permanent record of what the testator had to say, and some assurance that the testator did, in fact, say something. The fact that the will is written in the testator's hand gives us some assurance that the will was made by the testator. In essence, the testator's handwriting is the witness.
The technical name for a handwritten will is a holographic will. By definition, a holographic will is a will completely written and signed in the testator's handwriting. Because the will is in the testator's handwriting, no witnesses are required. Because the will is in the testator's handwriting, it is presumed that the testator wrote the will.
In some states, a holographic will must be dated by the testator. In some states, a holographic will only disposes of personal property.
Again, the weakness of an oral will is the risk of fraud and abuse. Nevertheless, some states recognize that the making of an oral will is useful in emergency or exigent circumstances. Modern limitations and requirements for an oral will limit the risk of fraud and abuse.
The technical name for an oral will is a nuncupative will. The modern oral will is usually limited to the disposition of personal property and can be made only when the testator or testatrix is in his or her last illness. Other requirements, depending on the state, may include a clear intention to make an oral will, reduction to writing in a short period of time, two or more disinterested witnesses, and probate within a short period of time.
Modern oral will is often made in ambulances, emergency rooms, hospitals, and nursing homes, when a dying person tells paramedics, doctors, or nurses his or her desires for the disposition of his or her property after death. The dire circumstances of the testator is some assurance that the will is authentic.
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