Oral wills are a traditional form of non-written will that has fallen out of favor in the modern Western legal system. They are inadmissible in Albuquerque or elsewhere in the state.
Some U.S. states recognize oral wills under certain circumstances, such as if the creator was a member of the armed forces, a sailor at sea, or someone facing imminent death. In cases where an oral will was created under the specific laws of its state (or other jurisdiction) that would normally consider it valid, it may be possible to admit an out-of-state oral will into probate in Albuquerque.
An Albuquerque oral will lawyer can assist you if you have questions about creating a will or entering it into probate. They can also help you make a valid written will if you are a resident of the Albuquerque area. We can also help anyone who represents an estate or who has an interest in one. In these cases, we can verify the possible validity of an oral will to determine if it might be usable in an Albuquerque probate proceeding.
Get answers to your questions and assistance with making a comprehensive estate plan when you book an appointment at New Mexico Financial Law. Schedule your no-obligation consultation with an Albuquerque oral will attorney today when you call us at 505-503-1637 or contact us online.
An attorney at New Mexico Financial Law can assist you with all legal matters pertaining to wills, estate planning, and probate. When it comes to oral wills, we are likely to be able to assist you if you are one of the following:
Our state’s laws do not recognize oral wills. If you are someone who has created an oral will out-of-state, we can assist you with verifying that it could be admitted into probate court after your death.
Better yet, we can review the terms of your oral will (to the extent possible) and help you record your wishes in a written, witnessed, and properly executed document. Our Albuquerque law firm has decades of experience helping people create wills and form other estate plans.
With every case, we always listen closely to the client’s goals and concerns. We also perform a thorough review of the client’s asset portfolio, any pre-existing estate planning documents (including wills), and the people you want to inherit your property. An Albuquerque attorney can then make tailored recommendations for creating a will, while also providing recommendations for other strategies to build a thorough and complete estate plan.
Our aim is always to help clients achieve their goals by accounting for the unique aspects of their finances and their personal relationships. With the right planning, you can rest assured that your wishes are properly recorded, legally enforceable, and strategically represented in the documents you leave behind.
An estate that is supposed to be handled by an oral will could encounter complications and challenges — especially if it is to be used in a state that wouldn’t normally recognize it.
Making matters more complicated, oral wills have different requirements in nearly every state that recognizes them. In Ohio, for example, the oral will must be recorded by “two competent disinterested witnesses within ten days after the speaking of the testamentary words.” The estate representative could then be forced to prove the date that the oral will was spoken and the date on which it was recorded by the witnesses to establish that it complied with all relevant state laws.
Interested parties may be able to challenge the use of an oral will to handle an estate, as well. They may allege that the testator was not of sound mind, for example, or that the representation of the will was not genuine. Since the will was spoken aloud, it can be difficult to prove its contents, as well, so there may be some disagreement as to how the testator intended for their property to be handled.
An Albuquerque oral will lawyer can examine the details of your case during a confidential case review. We aim to help you understand what options are available, no matter where your interests lie. Our goal is always to verify the wishes of the testator, confirm whether they can be validly used to dispose of the property in question, and provide guidance to concerned parties to help them pursue their legal goals to the best of our ability.
To create an oral will, a person (called the testator) provides spoken instructions to witnesses describing how they want their property distributed after their death.
This form of will has become increasingly rare. In cases where it is still accepted by law, there are usually extensive requirements for the will to be valid. In other words, oral wills today can only be used under highly specific circumstances.
Oral wills were the traditional form of will for people with limited wealth for many centuries. In cases where there was a recorded will, it often served as the official record of the will that had already been spoken aloud before witnesses.
Roman tradition, for example, allowed a citizen to announce their will to seven witnesses. However, most Roman wills were recorded on tablets while the property owner spoke their wishes aloud. The tablet could then be transcribed to a scroll, where it could be attested by witnesses who heard the words or saw the original tablet. Each witness would apply their signet ring seal as an affirmation of the will’s validity. When the scroll was to be unsealed, a majority of the witnesses had to be present.
Oral wills quickly fell out of fashion among literate property holders. They wanted to avoid disputes or ambiguity. By documenting their wishes and applying their unique signature, they aimed to ensure that their wishes for the bequest or devise of their property were indisputably recorded.
The ability for the general population to make a will and choose who would inherit their property in traditional Western law first came about in 1540. That year marked the passage of the first Wills Act in England, leading to the creation of the Statute of Wills. Before this time, any real property or estate holdings of significant value passed automatically to first-born heirs. If no “competent” heir could be found, then the estate passed to the crown in its entirety.
In 1677, English parliament passed the Statute of Frauds, requiring that a will be written and signed if it transferred real property. This provision made it basically impossible to use an oral will to handle any estate of significant value. In 1837, a revision to the Statute of Wills was passed, instituting the three familiar rules that form the backbone of estate law to this day:
Even after the passage of the Wills Act of 1837, Western law still recognized oral wills in a few select cases.
The use of oral wills by soldiers and sailors was a privilege first conferred on them by Julius Caesar. This ability allowed them to transfer property if they were to face the risk of dying in battle, at sea, or while on an expedition. English (and later UK) Law continues this tradition, allowing people serving abroad in the military or working on a vessel at sea to make oral wills in a limited capacity.
People on their deathbeds are also commonly given an exception to the requirement to have a written will. This usage of an oral will allows someone “in their last sickness” to quickly create or amend a will and capture the most recent (and theoretically accurate) account of how they want their property to be distributed after their death.
These two uses of oral wills can still be seen today in states that legally recognize them.
New Hampshire, New York, and Washington D.C. all allow the use of oral wills in cases where the testator is a member of the Armed Forces or a person stationed on a vessel at sea. An Armed Forces member may be required to be actively serving in a time of war, whether that war was formally declared or not. Once the person ceases to satisfy these conditions, such as returning from sea or ceasing to be a U.S. military member, then they have a limited window in which their oral will could be considered valid. After this time, they are required to have a written will.
Five states permit oral wills in cases where the testator is on the verge of death: Indiana, North Carolina, Tennessee, Ohio, and Missouri. If the testator does not die as expected of their illness, ailment, condition, or perceived threat, then the oral will ceases to be valid.
In some states, including Ohio, the oral will may need to be recorded shortly after its recitation.
If you have made an oral will, the best way to ensure that your estate is going to be handled in the way you would want is to go ahead and make a written will.
Per state law (NM Stat § 45-2-502), all wills must be in writing and signed by the testator (or signed at their direction and in their conscious presence). The signing of the will by (or for) the testator must also be seen by two witnesses, who must then sign the document in front of the testator and one another.
All parties involved must have legal capacity, which means they have the mental capability to understand what they are doing and how it impacts the testator’s estate (NM Stat § 45-2-501).
In cases of an oral will spoken on someone’s deathbed, it can sometimes be challenging to affirm the testator’s mental state and determine that they intended for the statements to act as their will. Written wills reduce this risk because the terms are clearly documented, and the testator has the chance to read and verify them before applying their signature. While it may be difficult for a testator whose health is failing to perform all of these steps, doing so reduces the risk that their oral will could be challenged or that their testamentary intent could be called into question.
For these reasons, it is advisable to reach out to an Albuquerque oral will law firm to confirm the validity of your actions and create a valid written will as soon as possible before the death of the testator.
Oral wills may have their place in legal tradition, but they can also pose major challenges for the handling of an estate. The majority of states — including New Mexico — do not legally permit them, either. This limited acceptance of oral wills makes it all the more necessary for testators and their loved ones to strive to create a written will.
No matter what situation you find yourself in, our Albuquerque oral will law firm wants to help. We can consult with you to verify the legality of a proposed estate plan, and we can also assist you with matters involving probate.
Get legal assistance in Albuquerque from a proven team that strives for stellar client service when you call our firm at 505-503-1637 or contact us online to schedule a no-obligation case review.
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