Nuncupative wills—also known as oral wills or verbal wills—are only recognized in about twenty states—and only in limited circumstances in those states. In states that do recognize nuncupative wills, the testator (person making the will) usually must be “in their last sickness” (on their deathbed) or “in imminent peril of death.” A few sates permit nuncupative wills made by military personnel on active duty or in war or armed conflict and by a mariner while at sea.

There usually must be two or three witnesses present who hear the testator speak the words demonstrating a testamentary intent to dispose of the testator’s property at the testator’s death. In some states these witnesses are required to transcribe (write down) the testator’s testamentary wishes (will) within a certain period.

States that recognize nuncupative wills usually limit the amount of property that can be conveyed and limit the property to personal property (not real property or real estate). Laws regarding nuncupative wills are usually located in a state’s statutes—often in the estates and trusts code or probate code.

In Massachusetts, nuncupative wills, also known as oral or verbal wills, are not generally recognized. Massachusetts law requires that wills be in writing, signed by the testator and by two witnesses in order to be valid. This is in accordance with the Massachusetts Uniform Probate Code. There are no provisions that allow for nuncupative wills, even under circumstances of last sickness or imminent peril of death. The only exception to the written will requirement is for members of the armed forces during a time of conflict, and the wills of mariners at sea, but these are very narrowly defined exceptions. Therefore, for most residents of Massachusetts, a will must be written and properly witnessed to be considered legally valid, and nuncupative wills would not be recognized by the courts for the purpose of estate distribution.