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 Montana, nuncupative wills, also known as oral or verbal wills, are not recognized. Montana law requires that a will must be in writing to be valid. According to Montana Code Annotated § 72-2-522, a will must be in writing, signed by the testator or in the testator's name by some other individual in the testator's presence and by the testator's direction, and must be signed by at least two individuals, each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Therefore, any oral statements of testamentary intent made by an individual, even if on their deathbed or in imminent peril of death, would not constitute a valid will under Montana law. This applies to all individuals, including military personnel and mariners.