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Nuncupative Will

In Canada, a nuncupative will is a type of will in which a testator orally declares in the presence of witnesses. It is also sometimes referred to as an “unwritten will.” Nuncupative wills are not as standard as written wills but can be just as valid.

In order for a nuncupative will to be valid, it must be declared by the testator in the presence of at least two witnesses. Moreover, the testator must be in sound mental health for the court to acknowledge the will as valid in court.

If you are considering making a nuncupative will, it is vital to ensure that it meets all of the requirements for a valid will in your province.

This article will provide an overview of nuncupative wills in Canada, including the circumstances in which they can be used, the requirements for making a valid will, and the potential advantages and disadvantages of this type of will.

What is nuncupative will?

A Nuncupative will is a kind of will that is declared verbally in front of witnesses. This kind of will is often referred to as an oral or verbal will because it is not written down.

The individual writing the will, also known as a testator, communicates their desires to witnesses on the disposal of their property and other assets. Wills declared in nuncupative form are typically penned by individuals in their last moments of life.

These wills are also commonly referred to as “deathbed wills” due to the fact that they are frequently drafted near the end of a person’s life when they are unable to write a will due to illness or injury.

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Several hundred years ago, when only a few people were literate, the majority of people depended on the spoken word to express essential information. Nuncupative wills were common and even required.

Nuncupative wills have their roots in an oral tradition that existed before the time when written papers were widely used and necessary for legal validity.

This will stems back to customs in which the dead person would leave their possessions to those who were there during their dying moments.

In some cases, the individual would even admit to having committed crimes while on their deathbed.

However, in today’s reality, nuncupative wills are seldom legitimate, challenging to establish, and are not acknowledged in the majority of provinces within Canada.

How does a nuncupative will work?

When making a will, the standard practice is to prepare a written document in which you identify yourself as the person producing the will and detail the manner in which you want your possessions to be dispersed following your death.

But when it comes to nuncupative will, all of the steps mentioned earlier will be avoided. 

A nuncupative will involves the individual creating the will through oral communication in the presence of witnesses. The only possibility of a written record being produced is if one of the witnesses or anybody else there decides to write down what is being said.

No document would need to be signed by either the individual making the will or the witnesses, as there would be nothing to sign.

Without a written form signed by the person creating the will and properly attested, it may not be easy to show the will maker’s intentions concerning how assets should be dispersed or who should be beneficiaries. For this reason, oral wills are no longer utilized in most states.

Validity of a nuncupative will

Oral wills are extremely uncommon, and even when found to exist, they rarely hold up in court. When cases are held up in court, there are stringent standards for what must be included for the will to be considered genuine.

Additionally, in a case where a written will was created before the oral one, the written one will most likely take precedence over a nuncupative one, regardless of how old or out-of-date the written one may be.

What components should a nuncupative will have?

Nuncupative wills are only used in extreme circumstances, such as when a person is on their deathbed and has no other choices left to express their intentions. There are stringent standards that must be met in order for spoken wills to be considered legitimate.

Because the rules governing nuncupative wills differ from province to province, you should verify the laws of your region to determine the precise requirements.

  • The person who made the will is sick, or the person’s life is in imminent danger.
  • The person who creates the will is required to invite at least two other persons to witness (hear) the will. In some states, there must be three witnesses present.
  • The directions given orally must be written down by the witnesses as soon as feasible. 

Benefits of having nuncupative will

In most Canadian jurisdictions, a nuncupative will may not be recognized as a legitimate legal document. However, there are some circumstances that a nuncupative will become extremely useful.

  • In a case whereby the heir or any other relative of the individual has to make a choice that has legal or financial repercussions, a nuncupative will may communicate to that individual what the dying desires of the person are.
  • Even though it is not a legally binding document, the nuncupative will may be considered by a judge in the event that disagreements concerning a written will are brought before the court. 
  • A nuncupative will may also simplify choices that need to be made for a person’s end-of-life care or sharing of assets. This form of will has the potential to cut down on the number of disagreements relatives of the person may have over death arrangements or sharing of properties. 

Cons of working with a nuncupative will

There are some cons associated with nuncupative wills. When it comes to the preparation of an estate, relying on an oral will may not be the best approach for a number of reasons, including the following:

Nuncupative wills are rarely recognized by the law

The majority of provinces do not recognize oral wills as being legitimate in probate court, and the states that recognize it have limits on what may be included in wills. This is because the will is not written; thus, the court depends on the testimony of the witnesses instead.

You run the risk of making an error

There is a good reason why the majority of individuals go through the trouble of making an inventory of their belongings and putting their wishes in a will.

If you wait until your last moment to voice your desires, the anxiety caused by the circumstance may cloud your judgment and prevent you from thinking properly.

You also run the risk of forgetting to mention specific assets in your nuncupative will or even excluding essential members of your family.

It is challenging to establish the validity of an oral will

Even if your nuncupative will is “valid,” your witnesses may have a tough time proving its authenticity in court. If you choose to leave your property in the form of a verbal will, you are placing your faith in the ability of your witnesses to accurately comprehend and convey your last desires. 

If the court decides that your oral will is invalid, your properties will be handled as if you never had a will. This may lead to unnecessary delays, misunderstandings, and emotional distress for everyone involved.

Should you consider creating a nuncupative will?

Lawyers do not recommend depending on an oral will since most states need to recognize them, and it might not be easy to prove them. Instead, you should create a formal will in order to safeguard your loved ones and the legacy you leave behind.

You will compile a list of your assets, together with the individuals or institutions you owe them to.

Conditions under which a nuncupative will may be recognized as legally binding

Wills that are given orally are often invalid in some jurisdictions. If you reside in a state that does permit nuncupative wills, they may be only legal in very specific situations.

For example, if you are a part of the armed services, a mariner, or in immediate danger of dying, your nuncupative will may only be valid in certain situations.

If you have a nuncupative will, the terms of that will take effect only if you pass away from the impending danger. If you survive the impending danger, the terms of your nuncupative will become invalid after a certain period has passed; therefore, you should ensure that you write once you can. 

Because it might be difficult to demonstrate the validity of a nuncupative will, you should only use one as a last option. In certain places, proof of a nuncupative will must be submitted to a probate court within a specified time after the decedent has passed away. 

A nuncupative will might be disputed throughout the process of probate since the court is required to assess whether or not the will is legitimate.

If the nuncupative will is found to be invalid, it will be the same as if you had died without leaving a will, and the court will have to decide who will get your possessions.

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September 5, 2023
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FAQs about nuncupative wills

What is a nuncupative will?

A nuncupative will, also known as an oral will, is a will that is communicated orally rather than being recorded in writing. A person who is nearing the end of their life is referred to as a testator. The testator makes an oral proclamation of their will, indicating their wishes for the distribution of their properties and assets after their passing. This type of will is done in place of a written will since the testator is often too unwell to execute one at this point. If there are any disagreements or ambiguities about the written will, other evidence, such as a nuncupative will, might be considered.

Does a nuncupative will need a witness?

Yes, in order to make a nuncupative will, you are required to have at least two witnesses present. Your witnesses, however, can't be designated executor or their spouses, and they also can't be listed beneficiary or their spouses. This rule applies to both sets of witnesses. The validity of a property given to a beneficiary who is also a witness may be called into question. The best approach for selecting witnesses is to choose those who have nothing to gain financially or otherwise when the will is read.

How is a nuncupative will's validity established in court?

Creating a nuncupative will should be the last option because of the difficulty in proving them. There are certain provinces that require proof of a nuncupative will to be submitted to a probate court within a specified amount of time following the death of the dead person.  The validity of a nuncupative will, like that of a written will, may be challenged throughout the probate process. If the nuncupative will is found to be invalid, the individual’s property will be distributed according to state law, just as if the decedent had never made a will. If found valid, the properties will be shared as indicated by the individual.

Who can act as a witness for a will in Canada?

Witnesses are the individuals who attest to the fact that you physically signed your Will. When you declare your will, a nuncupative will requires that you do so in the presence of at least two witnesses. But who are the two people who can serve as your witnesses? Your two witnesses need to be adults who are not in the following categories:

  • Those who will benefit from your will
  • The beneficiary's spouse or partner, if they have one.
  • Everyone else who has anything to gain by you signing your Will, such as the child of a beneficiary.
If any of these persons serve as your witness, they run the risk of losing their rights to whatever assets you left them in your will. So it is best to choose someone that is not related to you or something in your will.

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