Last-minute wills, often called deathbed wills, are not uncommon for someone who is bedridden at home or hospitalized and facing the end of their life. Nuncupative wills, also known as oral wills, are valid in nearly half of the states, including Mississippi. However, a nuncupative will must meet several requirements to be enforceable.
Discuss Your Case With a Mississippi Estate Planning Attorney
Nuncupative wills can lead to conflict among surviving family members. A potential beneficiary may attempt to enforce a nuncupative will to benefit from the deceased person’s estate. Legal issues involving nuncupative wills can lead to litigation in probate court. If you have questions about a legal matter involving a nuncupative will, the skilled attorneys at Palmer & Slay, PLLC, can help. Contact Palmer & Slay, PLLC, today to schedule an initial consultation.
Why Would Someone Create a Nuncupative Will?
The majority of Americans do not have an estate plan in place. Thinking about what will happen after we pass away can be difficult. In the middle of leading busy lives, many people put off creating a will until it’s too late. As a result, it’s not uncommon for a person who is bedridden or hospitalized and facing death to verbally state what they’d like to happen with their property after they’re gone. There are many reasons a person may attempt to make a verbal will, including:
- When a person is facing death without a written last will and testament
- When a dying person’s existing will is out-of-date or old, or
- When recent events lead a person to change the terms of their will as they face death
When Are Nuncupative or Oral Wills Valid in Mississippi?
What happens when a person doesn’t have a written will but verbally states how to distribute his or her property while seriously ill or dying? In Mississippi, verbal wills can be considered legally valid when they meet the requirements set forth under Mississippi law. Section 91-5-15 of the Mississippi Trusts and Estates code sets forth the requirements for a nuncupative will.
The nuncupative will must be expressed during a person’s last illness to be legally valid in Mississippi and if the bequest is over $100 in value, it must be proven by two witnesses that the testator called on some person present to take notice or bear testimony that such is his or her will, or words to that effect. Technically, oral deathbed wills may be valid, but relying on them is not wise to meet your estate planning goals. They are also invalid unless the probate process begins within six months of speaking the testamentary words, unless the words are reduced to writing within six days of being spoken. Meeting these requirements poses a challenge and there is always a potential for varying or uncertain memories of the decedent’s oral expression.
Nuncupative wills are sometimes confused with holographic wills, but they are two different types of wills. Holographic and nuncupative wills can occur while a testator is on his or her deathbed, but they are two different types of wills with different requirements. Nuncupative wills are entirely verbal and do not involve any type of written words by the testator. On the other hand, a holographic will is a will handwritten by the testator that is signed by the testator but not signed by any witnesses.
Holographic wills are typically less difficult to enforce than nuncupative wills. When a person needs to create a will as a last resort, holographic wills are preferable because the will’s validity is easier to prove. Since holographic wills aren’t witnessed, there must be testimony by in person or by an affidavit from uninterested persons that the will is in the decedent’s handwriting, that the will is authentic and that the testator had the competency to make a testamentary disposition of property. As with nuncupative wills, holographic wills are typically inadequate to deal with the real-life issues of their heirs in most estates.
Requirements for Written Wills in Mississippi
The best way to create an estate plan is to create a legally valid written will that meets all of the requirements outlined in Mississippi’s probate laws. In Mississippi, a person must be at least 18 years old and of sound mind to write a will. The person writing the will must intend the document to be a will. Written wills require the terms of the will to be written. The will must be signed by the person creating the will. Additionally, there must be two witnesses to the signing of the will, but the witnesses cannot be creditors or beneficiaries.
Protect Yourself, Your Estate, and Your Family With a Written Will
Creating a last will and testament is an important part of estate planning. While nuncupative wills can be enforceable in limited circumstances, relying on a deathbed isn’t an effective strategy.
You can avoid putting your family through the stress and uncertainty of dealing with a deathbed will by taking time to get your affairs in order now. Planning ahead will help you understand your options and make strategic decisions regarding your estate and beneficiaries. Waiting until you’re seriously ill can result in you not being able to make a will in any form and could result in your family becoming embroiled in litigation over whether the last-minute will is valid.
Working with an estate planning attorney will help assure you that you’ve created a legally valid, clear, and precise written will. Written wills prepared by an attorney are much more likely to be legally enforceable in Mississippi than nuncupative and holographic wills. An estate planning attorney can also help you understand other options, such as creating a trust-based estate plan that could be more beneficial than creating a will.
Contact an Estate Planning Attorney in Mississippi
If you have questions about the validity of a nuncupative or holographic will in Mississippi, speaking to an attorney can help you understand your legal rights and options. Will contests are somewhat rare, but they can be expensive and complicated. They can even lead to destroyed family relationships. The attorneys at Palmer & Slay, PLLC, can help you develop an effective legal strategy while protecting your interests. Contact Palmer & Slay, PLLC, today to schedule your initial consultation.