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 Virginia, nuncupative wills, also known as oral or verbal wills, are recognized under very limited circumstances. According to Virginia Code § 64.2-403, a nuncupative will is only valid if it is made by a member of the armed forces while in actual military or naval service during a time of armed conflict, or by a person who is with such member at the time the will is made, or by a mariner at sea. The testator must declare their testamentary intentions in the presence of two competent witnesses. Additionally, the estate that can be disposed of by a nuncupative will is limited to personal property and cannot exceed the value of $1,000, unless the testator is in actual military or naval service in which case the limit is $10,000. Real estate cannot be disposed of through a nuncupative will in Virginia. Furthermore, if the testator survives the peril or sickness, the nuncupative will becomes void. These regulations reflect Virginia's strict approach to nuncupative wills, emphasizing their use only in exceptional circumstances.