How to make a valid oral Will.

People often wonder if it is possible to make a will without writing it down. The answer is Oklahoma is yes. The an oral Will is a “Nuncupative Will.” A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities. No lawyer is needed since there is nothing to draft. This sounds pretty good. However, an oral Will can only be made under very particular circumstances.[1] This takes some tough planning if this is what you really want to do. Here are the requirements:

1. You must be in actual military service;
2. You must be “in the field” or “on shipboard at sea”;
3. Your Will must be uttered in contemplation, fear or peril of death or been in the expectation of death from an injury received that day;
4. Your Will must be witness by two witnesses (they must also survive the conflict to testify about it);
5. You must tell at least one of the witnesses that your statement is intended to be your Will;
6. The value of the estate bequeathed is no more than $1000.00.[2]

What good is this information to you? It is important to know that telling people who you want to receive the house, bank account or other property must be in a written form that meets certain requirements.

The story of Wiley.[3]

Wiley  had three kids Curtis, Pam and Janet. He also had a stepson named Jeffery. Wiley established a bank account and designated that upon his death the funds should be paid to his son Curtis. Wiley told his daughter Pam that he wanted his assets divided equally between the kids. Pam understood this to include Jeffery. There was even a document that stated that Jeffery should get $100 but it did not qualify as a last will. Wiley died and Curtis divided the funds between himself Pam and Janet but gave nothing to Jeffery.

Jeffery sued. On appeal the Court recognized that oral will must be presented in probate court. Wiley obviously did not meet any of the criteria. What was the end result? Jeffery received nothing.

The court also noted that even if the oral expressions were a valid Will, it could not change the payable-on-death designation on the bank account.  In other words, since Wiley designated that Curtis as the payable-on-death beneficiary it would not matter what the Will said.  He did not have to share the funds with his sisters.

Lessons from the Wiley Case:

• In order to have a valid Will it must meet the statutory requirements. Even a signed document may not do the trick.
• Oral expressions, wishes, instructions or demands are meaningless as they pertain to your estate plan.
• It is important to understand how beneficiary and payable-on-death designations affect your distribution plan.

More on Wills

[1] Title 84 Oklahoma Statutes §51.

[2] Title 84 Oklahoma Statutes §46.

[3] In re Estate of Fields, 2002 OK CIV APP 14, 46 P.3d 176 (Okla. Civ. App., 2001)