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 South Dakota, nuncupative wills, also known as oral or verbal wills, are not recognized as a valid form of will. South Dakota law requires that for a will to be valid, it must be in writing, signed by the testator, and witnessed by at least two individuals who also sign the will in the presence of the testator. This requirement is outlined in the South Dakota Codified Laws (SDCL), specifically in the provisions dealing with wills, estates, and probate. Therefore, any expression of testamentary intent made orally, without adherence to these formalities, would not constitute a legally binding will in South Dakota.