A loved one is fading. The family gathers. In their final moments, they speak their last wishes on who should get the house and who should look after what. It’s heartfelt, emotional, and clear to everyone in the room. But nothing was ever put in writing.
Can those final words count as a Will?
Verbal declarations, sometimes called deathbed wishes or oral Wills, come up more often than you’d think. In this blog, we explore what a nuncupative Will really is, and whether it’s legally recognised in Western Australia.
What is a nuncupative Will?
A nuncupative Will is a Will made by speaking your wishes out loud, rather than writing them down. Often referred to as an oral Will or verbal Will, it’s typically made in situations where a person is near death and doesn’t have time—or the capacity—to create a formal written document.
Historically, nuncupative Wills were developed in ancient Roman law and recognised in some legal systems, especially during times of war or crisis. Think of a soldier on a battlefield, declaring their wishes to a comrade before passing with no time for paperwork, but a clear intent to leave something behind.
Today, the concept lingers more in movies and misunderstandings than in actual law.
While the idea of honouring someone’s final spoken wishes feels intuitive, the law needs much more than words to uphold those wishes, especially here in Western Australia.
Are nuncupative Wills valid in Western Australia?
In short, no. Nuncupative Wills are not recognised under Western Australian law.
The Wills Act 1970 (WA) sets out strict requirements for a Will to be valid. It must be:
- In writing (whether typed, printed, or handwritten)
- Signed by the Will-maker (also called the testator)
- Witnessed by two adults who are present at the same time as the will-maker
A spoken or verbal declaration, no matter how sincere or clear, does not meet these legal requirements.
Even a video or audio recording isn’t enough.
What the law does allow – Informal Wills in WA
That said, WA law does allow for something called an informal Will under section 32 of the Wills Act. This gives the Supreme Court discretion to accept a ‘document’ that doesn’t meet the formal requirements, if it’s satisfied that the person intended it to be their Will.
That might include:
- A typed or handwritten document that isn’t properly signed or witnessed
- A note, email, or even a text message expressing final wishes
- Videos or recordings
- A document left in unusual circumstances (for example, during an emergency or serious illness)
To have this kind of informal documents accepted, the Court needs to be satisfied on the evidence that the Deceased took every step possible to confirm that hte informal documents contained their last wishes.
Here the verified evidence of how the document came into effect, who it was given to, who knew about it and what the Deceased’s final acts were, are key.
But there’s a big difference between an informal document and a verbal wish.
Courts need something tangible to work with. A written record, no matter how rough or incomplete, gives the court a chance to assess intent. Spoken words, on the other hand, leave too much room for doubt and always fall short.
Why relying on verbal wishes is so risky
It’s easy to see why someone might assume a heartfelt, spoken wish would count for something, especially if it was made in front of family. But from a legal perspective, verbal Wills are among the most dangerous and disputed forms of estate direction.
Without a written document, there’s no clear proof of what was actually said. Memories can fade. Emotions run high. Different family members may even recall different versions of events.
It’s the ultimate contest of “he said” vs “she said”.
There’s also the question of capacity. Was the person of sound mind when they spoke? Were they under pressure, confused, medicated, or distressed? Without formal witnesses or medical context, these questions are incredibly hard to answer and even harder to prove in court.
Ultimately, verbal wishes are just that: wishes. The courts deal in evidence. And in estate matters, that means formal, legally valid documentation.
Why formal Wills matter and how to get them right
A properly drafted Will is one of the most powerful tools you have to protect your wishes, your assets, and the people you care most about.
Unlike spoken words, a formal Will provides clarity. It reduces the risk of misinterpretation. It gives your Executor a clear roadmap. And it makes it far more difficult for others to challenge your wishes, particularly in high-value estates where the stakes (and emotions) can run high.
In Western Australia, formal Wills are especially important due to the state’s unique succession laws, blended family dynamics, and growing number of inheritance disputes. A well-prepared Will can incorporate Testamentary Trusts, account for non-estate assets such as superannuation and company affairs, and make proper provision for vulnerable or high-risk beneficiaries.
Most importantly, a formal Will helps ensure your legacy isn’t left to chance or costly and unnecessary conflict.
Don’t leave your legacy to chance
A verbal promise, no matter how heartfelt, won’t stand up in a Western Australian court.
Oral or nuncupative Wills simply aren’t recognised under WA law. And relying on one can leave your loved ones facing uncertainty, disputes, or expensive litigation.
The best way to protect your wishes is through a properly drafted, legally valid Will. If you’re reviewing your estate plan or starting from scratch, make sure your intentions are crystal clear and on paper.
Our team at Solomon Hollett Lawyers specialises in succession and estate law here in Western Australia. We can help you create a Will that works now and in the future.
Talk to one of our estate planning lawyers in Perth to get started with a plan that’s as considered as your legacy.
