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 New Mexico, nuncupative wills, also known as oral or verbal wills, are not generally recognized. New Mexico law requires that wills be in writing to be valid. According to the New Mexico Statutes, specifically NMSA 1978, Section 45-2-502, a will must be in writing, signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction, and signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will or the testator's acknowledgment of that signature or acknowledgment of the will. There are no provisions in New Mexico statutes that allow for the legal recognition of nuncupative wills, even under circumstances of last sickness or imminent peril of death. Therefore, for a will to be considered valid in New Mexico, it must adhere to the formal written requirements set forth by state law.