Does Your Will Have to be in Writing?

When you hear the term ‘will’ in regard to estate planning, the first thing that may pop into your head is a standard, typed document declaring to whom you want to pass on your assets and property. However, there are a few forms of non-standard wills that you may have heard of and are curious about in regard to their validity.

What is a Nuncupative Will?

One form of will that is not a written document is a nuncupative will, otherwise known as an oral will (and often referred to as a deathbed will). This type of will is spoken to the witnesses, rather than written down. It is important to note that nuncupative wills are not valid in every state. For example, nuncupative wills are only valid under certain circumstances in New York, and are not valid in Virginia.

What Makes a Nuncupative Will Valid?

As mentioned above, there are only certain instances in which nuncupative wills are valid under New York law. Per New York Estates, Powers and Trusts Law § 3-2.2, a nuncupative will is only valid in New York under the following circumstances:

  • The testator is a member of the U.S. armed forces and is engaged in war or other form of armed conflict
  • The testator is someone who is serving with the U.S. armed forces (non-member) and is accompanying those engaged in armed conflict
  • A mariner who is away at sea

While those who fit into the above categories can create a nuncupative will, there are further points to keep in mind regarding the legality of the will. Per New York law, a nuncupative will becomes invalid under the following circumstances:

  • For members of the U.S. armed forces, a nuncupative will becomes invalid one year after their discharge date from the armed forces
  • For those accompanying but not a member of the U.S. armed forces, a nuncupative will becomes invalid one year after the date on which they no longer accompanied the armed forces
  • For mariners at sea, a nuncupative will becomes invalid three years after creating the will

What is a Holographic Will?

A holographic will refers to a will that is handwritten, rather than typed. The validity of holographic wills also depends on state laws. In New York, a holographic will is only legal under the same circumstances outlined above for nuncupative wills. In Virginia, a holographic will is valid so long as the document is entirely handwritten in the testator’s handwriting and is proven to be by two disinterested parties (two individuals who do not stand to benefit from the will).

Are Video Wills Valid?

While we can record videos with ease due to modern technology, video wills are not valid in any state. In some cases, a video can be used to accompany the physical document, but a video alone will not be considered valid in court.

Can You Make a Will Online?

While you may see various services promoting the creation of an online will, this is not advisable for several reasons. Creating a will online does not allow for the personal attention needed to ensure that your wishes are properly outlined. In addition, state laws vary, meaning you could end up creating a will that is not valid, among many other mistakes.

If you are looking to create or update your will or any other estate planning documents, contact us today to learn how we can assist you.

For more information regarding various estate planning and elder law matters, view our resources page here, where you will find previous blog articles, newsletters and our informative webinar series.

Image by Mohamed Hassan from Pixabay

About the Author

Alyssa Marie Monteleon, Esq.

Alyssa Marie Monteleon is an elder law and estate planning attorney at the Monteleon Law Group, PLLC with offices in New York and Virginia. For more information, please visit or call (914) 840-2529.

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