How many times have you watched a movie, and a pivotal character, with their last gasp and dying breath, whispers their final wishes to a loved one? It’s a powerful, moving trope that propels the narrative forward and typically functions as a major catalyst for future events.
But while effective in films, an Oral deathbed Will is usually worthless in real life.
In NSW — and indeed in many states of Australia — Oral Wills have no legal validity. With strict requirements for the creation, recording, signing, and witnessing of a Last Will and Testament — a few alleged spoken words by the soon-to-be-deceased carry virtually no weight in Australian law.
An oral deathbed Will is absolutely useless unless it’s recorded — at which point, it becomes an Informal Will that still faces a high risk of being contested or rejected. But reassuringly, a properly prepared Emergency Will avoids these issues entirely.
What Is an Oral Will?
Also known as a nuncupative Will, an Oral Will is when an individual — usually in an end-of-life situation — verbally states their final intentions to one or more other people.
Often used in history by soldiers on the battlefield — where they had no easy access to a Wills and Estates Lawyer — an Oral Will could outline who receives a person’s assets and wealth, what they would like their funeral to be like, and who should look after their children after their passing.
However, they’re questionable, as:
- There isn’t a hard, written copy to check against.
- The supposed ‘witnesses’ could be telling untruths.
- Words spoken by the Testator (Will maker) could have been misheard.
- There’s no proof that the Testator was of sound mind.
- The memories of what was said could fade or become distorted.
- There’s a risk of undue pressure being placed on the Testator during their final moments.
Are Oral Wills Valid in Any Circumstances?
Oral Wills vs Informal Wills
At best, a verbal Will is considered an Informal Will if it’s recorded — a classification of Last Will and Testament that means the spoken Will doesn’t meet the strict requirements of Section 6 of the NSW Succession Act (2006).
This legislation states that a Will must:
- Be in writing.
- Be signed by the Testator, in front of two witnesses.
- The witnesses must also sign, using the same pen, during the same session.
- Be made with testamentary capacity — meaning that the person understands the implications of making a Will, the extent of their estate, and who they wish to receive an inheritance, outlined in Banks v Goodfellow (1870).
As an Oral Will doesn’t meet these regulations — it’s not written and isn’t signed or witnessed — the court will usually not accept it, effectively ignoring the Testator’s supposed wishes.
Can an Oral Will Be Recognised?
If the Oral Will was recorded, it might still be considered an Informal Will and could be declared valid by the court. That is, if the court genuinely believes that the Oral Will represents the true intentions of the deceased — and it has the consent of each beneficiary who would be entitled under intestacy.
However, without being recorded, an Oral Will is undoubtedly the weakest type of Informal Will — compared to, say, a quickly handwritten and signed document. Without seriously extensive supporting evidence, a verbal Will would be highly unlikely to be declared valid.
Case Study — When an Oral Promise Can Hold Weight
History
Back in 2001, a couple bought a property next door to an elderly woman — Barbara Murphy — who had a couple of adjoining waterside residences. Over time, the couple forged a strong relationship with Ms Murphy.
They planned to renovate their own home, which, if it had proceeded, would have blocked Ms Murphy’s views of the harbour. However, Ms Murphy promised to leave them her properties when she passed — as long as the couple looked after her as she aged, did not renovate their house, and would not move away.
The couple agreed, but Ms Murphy didn’t change her formal Will.
Over the next 14 years, the couple upheld their side of the deal — no renovations and care for Ms Murphy. But when she died in 2015, they were left only $25k in her Will, and the properties were bequeathed to her sister.
Legal Procedure
The couple took the matter to court (Moore v Aubusson, 2020) and made a claim based on Estoppel. The Supreme Court of New South Wales found in their favour — saying that:
- Ms Murphy made a clear promise about the properties to the couple.
- The couple experienced detriment, by not renovating and giving a decade of care.
Consequently, the court said that the two buildings — about $9 million in value — must be transferred to the couple. Basically, overriding the wishes stated in Ms Murphy’s Will.
Final Thoughts
This case demonstrates that promises made with respect to a person’s estate, even with a valid will, can be honoured in rare cases with specific circumstances. However, it also shows that verbal promises can lead to complex and emotionally-taxing situations — never mind substantial legal fees.
It’s, therefore, highly advisable to document such agreements legally, by creating or amending a Will to ensure they concur — even when the time available seems too short.
Emergency Wills — The Only Way To Protect a Legacy
When circumstances demand immediate action, a formal Will is crucial — and possible. The solution is an Emergency Will.
This legally binding document — created in emotionally charged, time-critical circumstances — meets all the requirements demanded of a formal Will. The only difference between an Emergency Will and a standard Will, is that the former is made in a much shorter time frame.
With a reputable Emergency Will lawyer, you usually receive:
- Same-day appointment — often within hours of contacting the solicitor.
- Understanding and compassion — giving you the reassurance you need at a difficult time.
- On-site attention — attending private homes, hospitals, or aged care facilities.
- Testamentary capacity assessment — considerately checking that the Testator is of sound mind, and understands the implications of making a Will.
- Witnesses — if you or a loved one has none available. Doctors and people in nursing homes are typically reluctant to be witnesses because they don’t want to be called into court.
- A Will completed in situ — taking instructions, drafting, signing, witnessing, and printing there and then for your peace of mind.
- Follow-up support — available for future advice, or evidence during Probate to give clarification on testamentary capacity.
Falzon Legal — Safeguarding Wishes When Time Is Short
An Oral Will may work in fictional drama, but it has little power in NSW.
The only way to protect your or a loved one’s intentions when those final moments approach is with an Emergency Will from Falzon Legal. Having the same validity in law as a standard Will, it safeguards your beneficiaries, defends your estate, and ensures your assets aren’t handed to the court for distribution.
With compassion, support, experience, and ceaseless understanding — we guide you through the whole process, making sure your final wishes are documented promptly, accurately, and with dignity.
Oral Will FAQs
Oral Wills Are Free, So How Much Do Emergency Wills Cost?
An Oral Will might not cost anything, but since it lacks legality, it’s virtually worthless — and will cause expensive court disputes for loved ones after passing and generally takes 12 months or longer to resolve. Emergency Wills, when done properly by a reputable solicitor, do come with a fee.
However, with Falzon Legal, this cost addresses professional drafting, on-site visits, proper witnessing, and possible later evidential testimony for testamentary capacity at the Probate stage. Furthermore, with the reassurance of having a legally valid Will — Emergency Wills are priceless.
Is Contesting a Deathbed Will Possible?
Yes, in fact, it’s highly likely. As they don’t meet the requirements outlined in Section 6 of the NSW Succession Act (2006). That is, they’re not written, signed, or witnessed. Oral deathbed Wills are easily open to a challenge and are subject to the agreement of the beneficiaries entitled under intestacy before a grant can be made.
An Emergency Will — properly executed in solemn form with a solicitor present — is the only way to protect your legacy when time is short.
What Are the Risks of an Oral Will?
The likelihood is that the Oral Will shall be considered Informal, which means that it doesn’t meet the requirements for a Will outlined by the Succession Act. This can lead to the estate being handed to the Public Trustee, who distributes the estate according to the laws of intestacy.
Therefore, the majority of the estate will typically go to the next of kin. If they cannot be found, the government takes the assets. This results in the verbal wishes not being followed, and the intended beneficiaries receiving nothing
Can There Be More Than One Informal Will?
Yes! A Testator could express their wishes orally and/or record them in numerous Informal Wills. This means that each alleged Will must be presented to the court and its validity argued.
Not only would this take a significant amount of time — we’re talking possibly years — but it’s also expensive, stressful, and emotionally tolling for those left behind. And, if you are the Testator, it can mean your intentions aren’t followed. Those who you wish to benefit may receive nothing at all.
So don’t wait — ask Falzon Legal to draft your formal Will!
What About a Voice or Video Recording? Is That a Better Type of Oral Will?
Generally speaking, yes. However, video or audio recordings are not legally valid Wills in NSW either — there is no signature, nor was it signed in front of witnesses, and the witnesses haven’t signed either. Like the whispered intentions of the soon-to-be-deceased, these recordings would also be considered Informal Wills.
