Can I speak my Last Will into existence? – Nuncupative Wills in North Carolina

What is a nuncupative will?

North Carolina recognizes the validity of an oral will made by a person at the end of their life – sometimes called a “death-bed will” or more formally, a nuncupative will. By statute, a nuncupative will is defined in N. C. Gen. Stat. §31-3.5 as follows:

A nuncupative will is a will (1) Made orally by a person who is in that person’s last sickness or in imminent peril of death and who does not survive such sickness or imminent peril, and (2) Declared to be that person’s will before two competent witnesses simultaneously present at the making thereof and specially requested by the person to bear witness thereto. 

How is a nuncupative will made?

As described above, a person may make an oral will by simply stating in the presence of two disinterested witnesses that they intend to make an oral will while they are in a state of illness or in imminent peril of death. The witnesses must reduce the person’s final wishes into written form as soon as possible – but not longer than 10 days after the person’s death.  The witnesses’ statement(s) must be presented to the probate clerk in the county where the person died within six (6) months of the date of death.  

Is a nuncupative will valid?

The statute outlines the specific requirements necessary to have a valid nuncupative will admitted to probate in North Carolina.  First, a person must be suffering from their “last sickness” AND must not survive.  A nuncupative will would not be valid if the person recovers from the illness or does not die from the defined illness of which they are suffering at the time they made the oral statements.  This is probably the most litigated issue involving nuncupative wills.  

The second part of the statute requires the person attempting to make a nuncupative will to overtly call upon two witnesses who are present with them to bear witness to their oral will.  Those witnesses must be competent to understand what the person is saying and they must not be heirs or beneficiaries of the ill person.

In Kennedy v. Douglas, 151 N.C. 336, 66 S.E. 216 (1909), the Supreme Court of North Carolina considered the validity of a nuncupative will of Susan Thomas Kennedy of Buncombe County, North Carolina.  In this case, the Court affirmed the validity of nuncupative wills as being generally valid in North Carolina. However, in Kennedy, the Court affirmed the decision of the lower Court that the evidence in this particular case was insufficient to establish a nuncupative will in favor of Ms. Kennedy.  Ms. Kennedy dictated instructions for her final wishes to her friend Ms. Knox some nine months prior to her death.  Ms. Knox made written notes of Ms. Kennedy’s directions about two or three months later.  Ms. Knox then took her notes to an attorney and asked him to draft a will for Ms. Kennedy.  The attorney drafted a will for Ms. Kennedy based on the notes.  Ms. Knox took the proposed written will to Ms. Kennedy on multiple occasions, but Ms. Kennedy never signed it.  She did confirm to Ms. Knox and one other witness that the contents of the written will reflected her wishes as articulated to Ms. Knox months ago.  The Court ruled that the facts of this case did not establish a nuncupative will.  The decedent gave her instructions to Ms. Knox several months before her death, and Ms. Kennedy did not state her wishes before two disinterested witnesses.  Id., 66 S.E. at 217.  The Court also held that Ms. Kennedy’s instructions to Ms. Knox were not intended to create a nuncupative will, but instead they were instructions for a written will to be drafted by the attorney.  Id. Ultimately, in this case the Court held that the nuncupative will failed due to the fact that it was not made contemporaneously in the last sickness of the decedent and the decedent’s instructions were not witnessed by two disinterested witnesses and reduced to writing within 30 days.

Ninety years later, the Court of Appeals of North Carolina considered the contents of a purported nuncupative will in the case In re: Will of Krantz, 135 N.C.App. 354, 520 S.E.2d 96 (1999).  This case discussed whether or not the testator was in his “last sickness” at the time of making his oral will.  The Court explained that our legislature provides no statutory definition for “last sickness”  However, the Court said that “[i]t is well accepted, however, that ‘last sickness’ has reference to the sickness or illness that eventually results in the decedent’s death.”  Id. at 358, 520 S.E.2d at 99.  The Court went on to say that “‘last sickness’ does not include early or intermediate stages of a chronic disease.”  Id.  Mr. Krantz suffered from severe hypertensive disease (high blood pressure).  Id. at 97, 135 N.C.App. at 355.  On the day before his death, Mr. Krantz called in two disinterested witnesses and specifically told them he wanted them to witness his oral will.  One of the witnesses began taking notes simultaneously with Mr. Krantz’s declaration.  The other witness also took detailed notes.  The issue for the Court was to determine whether or not Mr. Krantz was in his “last sickness” such that it was appropriate for the lower court to enter summary judgment in favor of the party who challenged the will.  The Court held that whether or not a person is in their “last sickness” is a question of fact for a jury.  The Court further noted that there was a “genuine issue of fact as to whether Decedent reasonably believed he was in the last stage of a chronic disease and whether Decedent was indeed in the last stage of a chronic disease.”  Id at 358, 135 N.C.App. at 99. Therefore, even though Mr. Krantz was suffering from high blood pressure when he made his attempted oral will and he may have met the legal standard for having two disinterested witnesses present, the facts of his case were not sufficient for the lower Court to order judgment in his favor without the factual issues regarding his “last sickness” to be considered by a jury.  The Court noted that Mr. Krantz’s physician “did not believe that he was suffering from a terminal condition, was in a life threatening condition, required hospitalization or nursing care, or was in imminent danger of death.”  Id. at 355, 135 N.C.App. at 98.  This is a cautionary tale for families and attorneys who may have to deal with nuncupative wills. This case serves as a good example of some of the issues that can arise in Court.

Nuncupative Wills vs. an Estate Plan

It is important to note that a nuncupative will cannot override the terms of a properly executed written will.  A valid will can only be overridden or revoked in writing by its maker in a subsequent document (codicil) or by executing a new will that revokes all prior wills, by operation of law, or by destruction of the original document.

Pursuant to N. C. Gen. Stat. §28A-2A-10, a nuncupative will can only be probated after notice is provided to the decedent’s surviving spouse and/or next of kin.  A nuncupative will is also limited in scope as it can only pass personal property of the decedent. .  An oral will cannot pass title to real property.  Therefore, a person who is ill or dying cannot designate that the family home passes to someone by simply making an oral statement.  A devise of real property to a specific beneficiary must be made in writing to be valid in North Carolina.

If you have questions about nuncupative wills in North Carolina, please contact McIntyre Elder Law at one of our North Carolina offices – Charlotte/Shelby/Hendersonville –  to set up an appointment to speak with one of our elder law attorneys for more information on your specific situation.  And remember, having your validly executed will and corresponding estate planning documents in place is the best way to ensure your wishes are followed after your death. 

Contact McIntyre Elder Law at (888) 999-6600 or click here to get started with a complimentary no-obligation consultation today

Jane Dearwester, Estate Planning & Elder Law Attorney

Jane Dearwester, Estate Planning & Elder Law Attorney

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